George Will, continuing his role as defender of conservative judicial activism, devotes his Sunday column to a defense of Bush v. Gore. Will devotes much of the space to a pretzel-like defense of the merits of the decision, which held that any attempt to ameloriate the unequal treatment of voters across counties (some of which used vote-counting systems with far higher error rates than others) would itself constitute a violation of equal protection. What's interesting is trhe sociological observation Will begins with:
The passions that swirled around Bush v. Gore, the Supreme Court case that ended 10 years ago Sunday, dissipated quickly. And remarkably little damage was done by the institutional collisions that resulted when control of the nation's supreme political office turned on 537 votes out of 5,963,110 cast in Florida.
This does point to one of the most remarkable aspects of the episode, which is how little protest ensued. Will attributes this to the wisdom of the decision, which the five majority members find so embarrassing they shout down any attempts to diuscuss it and have never invoked it as precedent. I attribute it to the pervasive liberal defeatism of the period.
Imagine the circumstances of the period were reversed. Democrats had held the presidency, despite losing the popular vote, because the candidate's brother ran the state, his highly partisan Secretary of State made a series of partisan decisions in consultation with Republicans, culminating in a partisan 5-4 Supreme Court decision to halt a statewide recount. I maintain that republicans would have erupted in massive and perhaps violent demonstrations, rather than suliong off as liberals did.
I can't prove this. I can point to one suggestive event during the period, though. At one point, Miami-Dade County was conducting a recount thought by both sides to contain enough uncounted votes to put Al Gore ahead. Republicans stormed the country building and successfully disrupted the recount. It is the only time I'm aware that a federal political decision was influenced by mob rule. It was a shocking moment.
The liberal psyche at the time was highly dispirited. Democrats had defended President Clinton against impeachment because the punishment was so wildly out of scale to the crime, but few of them came away feeling enthusiastic about Clinton, the Democratic Party, or politics itself. The Florida recount and Bush v. Gore was a case of a movement inflamed with passion and imposing its will at every level, from grassroots activism through political machinations through a partisan Supreme Court majority.