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Few lasting scars from controversial election

Posted: Sunday, December 16, 2001

WASHINGTON -- The Supreme Court's stunning decision that all but declared George W. Bush president provoked warnings that the court had grievously wounded itself with partisan divisions. A year later, those fears seem unfounded and there is no sign of enmity among the justices.

Plans are on as usual for a court Christmas party, a traditional affair complete with Christmas carols led by Chief Justice William H. Rehnquist. The nine justices joke and joust as always on the bench, and are careful to say nothing critical about the ruling or about their colleagues.

There is no suggestion that the high court's rulings carry less weight in the year since the Dec. 12 decision, lawyers said. Similarly, it does not appear that the current justices will be immutably identified by their votes in the case, which was decided by the barest 5-4 majority.

Justice John Paul Stevens, whose scathing dissent in Bush v. Gore said the ruling was sure to lend ''credence to the most cynical appraisals of the work of judges throughout the land,'' recently led lawyers in a patriotic toast of ''our president.''

The ruling permanently stopped court-ordered ballot recounts in Florida. Bush wanted the recounts stopped, and the Supreme Court's agreement was tantamount to calling the election for the Republican. Gore conceded the next day.

For all its stark political implications, Bush v. Gore has left a remarkably small wake in the business of politics, lawyers said.

The clamor for reform of state election practices has quieted, and there is little talk anymore of new federal money to forever dispel the hanging chad. The few voices demanding overhaul of the Electoral College system have also mostly fallen silent.

''Although a large segment of the public didn't seem happy with what the Supreme Court did, and a lot of people questioned whether the court should have gotten into it, it seems to me the longer-term damage to the court's reputation in the mind of the public is smaller than many would have expected,'' said Vikram David Amar, law professor at the University of California, Hastings. ''It tells us something about the nature of the court.''

''There's a tendency to say, 'this changes everything,''' said Lawrence M. Friedman, a legal historian at Stanford University. ''The O.J. Simpson case, people said 'this changes everything.' It didn't. Then Bush v. Gore, 'this changes everything.' It changed nothing.''

Intervening events, most importantly the Sept. 11 terrorism attacks, have turned the public's attention away from the election of a year ago, and may make the Supreme Court's role less memorable as well, said Georgetown University law professor Susan Low Bloch.

''Also, the court's role was less determinative than people thought,'' Bloch said.

Florida ballot reviews by a consortium of media organizations including The Associated Press showed that the limited recounts sought by Democrat Al Gore would not have erased Bush's tiny lead in the decisive state. Thus, the court only brought the process to a quicker end, she said.

As a piece of legal reasoning, Bush v. Gore has spawned a lively and continuing academic debate. Dozens of books and journal articles either support or tear down the court majority's view that the recounts were so imprecise as to violate the Constitution's guarantee that everyone will be treated equally under the law.

''It continues to harm the Supreme Court in the eyes of lawyers and academics, but not so much in the public's eye,'' Amar said.

As a stand-alone ruling, Bush v. Gore has less effect on the public's view of the court than its repeated visitation of sore spots such as abortion and some civil rights issues, lawyers said.

Bush v. Gore will not go down as one of the landmark Supreme Court decisions, one in that handful that Americans remember from civics class, lawyers said.

''It will not be Brown v. the Board of Education, which transformed American society,'' by integrating schools, said UCLA law professor Eugene Volokh.

''It will be a big decision, it will be long debated and long discussed, but the Supreme Court is a very important, central institution in American society and I don't think that Bush v. Gore changed that very much one way or the other,'' said Ronald Klain, a Washington lawyer who led Gore's court fight in Florida.

The bottom line for him a year later? ''We still lost.''



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