Court has gone from Bush v. Gore to Roe v. Wade

If the U.S. Supreme Court becomes a subsidiary of the Republican Party by overturning Roe v. Wade, the shapeshifting will have begun when the court ended the 2000 presidential recount in Florida.

Only Stephen Breyer and Clarence Thomas remain from that court. Its ruling, however, foretold the eagerness of Republican appointees to practice the judicial activism that they claimed to oppose.

Charles Fried was solicitor general under Ronald Reagan. “Reactionaries,” Fried said, dominate the current court, not conservatives. Overturning Roe v. Wade would be “constitutional vandalism.”

A similar trashing occurred on Dec. 12, 2000, when five justices — all GOP appointees — stopped the recount of disputed ballots that the Florida Supreme Court had ordered four days earlier. George W. Bush thus won Florida by 537 votes and thus won presidency, despite losing the popular vote.

Al Gore still probably would have lost. Reporting by The Palm Beach Post showed that Bush would have won the two likeliest recount scenarios. The votes Gore needed most were gone, most notably because of doublepunched and miscast ballots in Palm Beach County.

Unelected justices, however, decided the outcome, not ballots. And the reasoning seemed more political than legal.

The Florida Supreme Court said the standard for contested ballots should be the “clear intent” of the voter. That was Florida law.

Bush, however, argued for one standard. The high court ruled that the state court’s order violated the equal protection clause of the U.S. Constitution.

Yet disparities already had disadvantaged some voters compared to others. Election officials statewide invalidated votes in heavily Black precincts at rates three times higher than in mostly white precincts.

Some counties used optical-scan machines that did not accept double-punched ballots. Voters could correct mistakes. Such a system in Palm Beach County, rather than punch cards, could have given Gore those votes he lost.

Protection was hardly equal. Still, the U.S. Supreme Court could have allowed Florida to set a standard and complete the recount. Six days remained before presidential electors were to meet.

But those five justices — Anthony Kennedy, Sandra Day O’Connor, William Rehnquist and Antonin Scalia joining Thomas — ruled that there was not enough time. Having prolonged the case, they saw a constitutional crisis that did not exist.

In 2013, O’Connor said the better response from the court might have been, “We’re not going to take it. Goodbye.” She worried that the ruling “gave the court a less-than-perfect reputation.”

That reputation has since sunk further. A Gallup Poll in September found the court’s approval rating at 40% — a record low. The decline has been greater in recent years, aligning with the GOP’s increased politicization of the court.

Breyer and Ruth Bader Ginsburg,

Bill Clinton’s appointees, won Senate confirmation by votes of 87-9 and 96-3. Except for Samuel Alito, all of Bush’s and Barack Obama’s nominees got at least 63 votes.

But none of Donald Trump’s appointees got more than 54 votes. Trump made clear that right-wing ideology mattered most. Sen. Mitch McConnell, R-Ky., had stolen one seat from Obama.

Since Bush vs. Gore, GOP appointees have approved much of the Republican wish list. They have gutted the Voting Rights Act, allowed unlimited money in politics, expanded gun rights and favored church over state.

The Roberts court also has upheld the rights of LGBTQ Americans. Roberts, though, is now an outlier in the GOP bloc.