On September 18, 2020, Justice Ruth Bader Ginsburg passed away due to complications of cancer. The second female Supreme Court Justice, appointed in 1993 by President Bill Clinton, was famed for both her progressive stances on social justice issues and her forceful dissents to many Supreme Court rulings.
While many mourn the passing of Justice Ginsburg, her death has also prompted controversy in an already tumultuous political year. The question of whether a Supreme Court Justice seat should be filled in an election year——is even more fraught in a year in which many are already expecting election results to be contested. If this happens, a final decision may be in the hands of the Supreme Court, as it was in 2000’s election with the decision of Bush v. Gore.
The decision to have the Supreme Court essentially decide the next president was incredibly heated—and on top of dissenting from the initial decision, Justice Ruth Bader Ginsburg also made a fiery speech to the University of Melbourne in which she further explained why the Supreme Court should have been left out of the decision.
Below is an excerpt from , a collection of speeches edited by William Safire. In this excerpt, Pulitzer-Prize winning author Safire gives further context to the Supreme Court decision, followed by a transcript of Justice Ginsburg’s speech.
After Bush v. Gore, Justice Ruth Bader Ginsburg Speaks Out for Judicial Independence
“Each side warned that the other risked casting a cloud of illegitimacy over the election.”
In the presidential election of 2000—only the second in U.S. history in which the winner in the Electoral College lost the popular vote—the U.S. Supreme Court decided 5–4 that it was best able to resolve the controversy over election results in Florida. The intensely controversial case, Bush v. Gore, transfixed a nation that had never before placed the responsibility for making the call that would decide who would be the next president on any court. The famous saying of Finley Peter Dunne’s fictional Mr. Dooley—that “the supreme coort follows th’ iliction returns”—was turned on its head, as the election returns were ultimately decided by the Supreme Court.
Democratic voters were understandably angered at the high court’s intervention that led to the election of Republican George W. Bush. Republicans—who usually called for judicial restraint and inveighed against judicial activism—were delighted with the decision of the Court, most of whose members were appointed by Republican presidents, to step into the political process. This led to questions about the Court’s independence and charges of politicization.
Ruth Bader Ginsburg, the Brooklyn-born attorney known for her advocacy of women’s rights and everyone’s civil liberties, had been appointed to the Supreme Court by President Bill Clinton in 1993. She voted with the minority in Bush v. Gore and joined the vigorous dissent.
Speaking to the University of Melbourne Law School on February 1, 2001—little more than a week after the inauguration of President George W. Bush—Justice Ginsburg put the case in the context of other famous controversies decided by the Court. She concluded that “whatever final judgment awaits Bush v. Gore in the annals of history,” public confidence in the whole federal judiciary (not just the Supreme Court) would be sustained “at a level never beyond repair”—a judicious way of saying that, in time, the drop in confidence could be fixed.
In this excerpt, I have deleted her published speech’s footnotes, one of which states: “Justice Ginsburg acknowledges with appreciation the grand assistance of her 2000 Term law clerk, Goodwin Liu, in composing these remarks.” Not many speakers do that.
…OF ALL THE words recently spoken and written about judicial independence in the United States—and whatever one makes of the U.S. Supreme Court’s part in calling the excruciatingly close November 2000 election for President Bush—a 1980 comment by the U.S. Chief Justice remains, in my view, right on target. On the obligation of a good judge, Chief Justice Rehnquist then said: He or she must strive constantly to do what is legally right, all the more so when the result is not the one the Congress, the president, or “the home crowd” wants. My aim in this lecture is to offer some thoughts, from the vantage point of a U.S. federal judge, on just how important—and difficult—it is for judges to do what is legally right, no matter what “the home crowd” wants.
If it is true, as Henry Fielding wrote, that examples work more forcibly on the mind than precepts, then allow me to begin with a few trying cases, situations in which the U.S. Supreme Court intervened to resolve controversies some thought best left to political decision makers—to the executive or the Congress. My first two illustrations today generate no sparks in the United States. The third awaits history’s judgment.
I will recall first a 1974 case titled United States v. Nixon, which yielded a unanimous opinion written by Chief Justice Rehnquist’s predecessor, Warren Burger. On Chief Justice Burger’s death, a New York Times obituary praised the opinion as “the pinnacle of [Burger’s] career and one of the [U.S.] judiciary’s finest achievements.” The case concerned a subpoena issued by U.S. District Judge John Sirica at the height of the Watergate scandal. Judge Sirica’s subpoena directed the president to produce, for use in a criminal proceeding, tape recordings and documents capturing Oval Office conversations between Nixon and his closest advisers.
In his campaigns for the presidency, Nixon had repeatedly called for the restoration of “law and order.” He promised to appoint judges equal to the task, people who would not be “soft on crime.” A United States Supreme Court that included four Nixon appointees, including Chief Justice Burger and now Chief Justice Rehnquist, declared the law and affirmed Judge Sirica’s order. The president obeyed, then promptly resigned from office.
Earlier in time, my second illustration is popularly known as the “steel seizure case,” Youngstown Sheet & Tube Co. v. Sawyer. In the spring of 1952, the United States was heavily engaged in the Korean War. At home, inflation was rising, and labor unrest was widespread. For several months, the United Steel Workers of America had been seeking a substantial wage increase, which the steel companies had repeatedly refused. With negotiations at an impasse, the steel workers voted to strike beginning on April 9. On the evening of April 8, to keep the mills in operation, President Truman issued an executive order directing the secretary of commerce to take possession of eighty-five steel companies. The order declared that “a work stoppage would immediately jeopardize and imperil our national defense… and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field.”
The steel companies argued that the order was an unconstitutional encroachment on congressional authority. In response, the government urged that a strike would so endanger the well-being and safety of the nation that the president must be held to possess “inherent power” to seize the steel mills. The United States District Court in Washington, D. C., rejected the government’s plea and enjoined enforcement of the president’s order. But the full Court of Appeals immediately voted 5–4 to stay the district court injunction, with the eight judges appointed by Truman evenly divided on the issue. One month later, a 6–3 majority of the United States Supreme Court declared the president’s order invalid; the authority to seize property, the Court held, is a lawmaking power which the Constitution vests in Congress alone “in both good and bad times.”
While four of the justices in the majority were appointed by Truman’s predecessor, Franklin Roosevelt, the fifth and sixth votes came from Justices Burton and Clark, both Truman appointees. In a concurring opinion, Justice Clark explained (borrowing words written by Justice Story more than a century earlier) that, although the Court gives “the most entire respect” to the executive branch, “[i]t is our duty to expound the laws as we find them in the records of state; and we cannot, when called upon by the citizens of the country, refuse our opinion, however it may differ from that of very great authorities.” President Truman immediately complied with the Court’s judgment. “[L]ess than thirty minutes after the justices finished reading their opinions,” he dispatched a letter ordering the secretary of commerce to return the confiscated mills to their owners.
More than 150 years ago, a young French observer of democracy in America, Alexis de Tocqueville, made this prescient comment: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial one.” Were the Watergate and steel seizure cases not enough to illustrate Tocqueville’s insight, my third example, Bush v. Gore, surely provides graphic confirmation of its truth. The Court’s decision in that case ended thirty-six days of controversy over the 2000 presidential election.
The petition for review in Bush v. Gore was filed in the United States Supreme Court on the evening of December 8, 2000, hours after the Florida Supreme Court had ordered statewide manual recounts of certain disputed ballots. Whether the recounting was permissible under state and federal law raised questions whose stakes could not have been higher. On December 8, George W. Bush led Al Gore in the Florida vote tally by some hundreds of votes—a razor-thin margin in an election with over 6 million votes cast statewide. At the national level, Gore had won the popular vote, and with 267 all-important electoral votes compared to Bush’s 246, Gore was only three electoral votes shy of victory under the presidential electoral system decreed by the U.S. Constitution. The winner of Florida’s popular election would capture all of the state’s twenty-five decisive electoral votes and, in turn, the presidency.
One would expect that the first instinct of any judge, faced with such a case, would be restraint. The Supreme Court’s initial encounter with the controversy might fit that description. Just five days before it agreed to hear Bush v. Gore, the Supreme Court issued a unanimous decision declining to intervene at an earlier point in the unfolding drama, when the Florida Supreme Court had interpreted Florida election laws to allow manual recounts to go forward in certain counties. The U.S. Supreme Court found the underpinnings of the Florida Supreme Court’s initial decision unclear, and therefore remanded the case for clarification whether federal law had been duly considered. In that measured response, the U.S. Supreme Court referred to precedent counseling restraint when “there is considerable uncertainty as to the precise grounds of [a state court] decision.”
In the ensuing irresolution, pressure on the political and legal system continued to mount. Not since 1876 had a presidential contest been so close, and not since then had the nation waited so long for a definitive resolution. On December 9, one day after the Florida Supreme Court’s decision ordering statewide manual recounts, the pressure pushed the unanimity of the United States Supreme Court past its breaking point, as a 5–4 majority voted to stay the recounts pending review and disposition of Bush v. Gore.
Ordinarily, interim stay orders of the Court, like grants of review, issue without explanation. But this was no ordinary case. Justice Stevens took the unusual step of issuing a written dissent, which Justice Souter, Justice Breyer, and I joined, stating reasons for concluding that the stay was unjustified. In the dissenters’ view, the Court should have stayed out of the fray entirely, leaving its ultimate resolution to Congress. Justice Scalia took the even more unusual step of explaining why he voted in favor of a stay securing Court adjudication of the controversy. Each side warned that the other risked casting a cloud of illegitimacy over the election.
On December 12, three days after granting review, and one day after oral argument, the U.S. Supreme Court released its decision. Unaccompanied by the usual syllabus, and including six separate writings, the release first confused instant reporters. The outcome, however, is by now clear to all. In an unsigned opinion, five justices agreed that under the Equal Protection Clause of the U.S. Constitution, the Florida Election Code’s “intent of the voter” standard provided insufficient guidance for manually recounting disputed ballots. The five justices further agreed that there was no time left to conduct recounts under constitutionally acceptable standards. That was so, the per curiam opinion explained, because the Florida Supreme Court had interpreted Florida election law to require completion of all vote counts by December 12, the date by which, under federal law, Florida had to certify its election results in order to gain for the state’s electoral votes “conclusive” effect in Congress’s tally of all electoral votes.
Four justices dissented. Two said that the “intent of the voter” standard presented equal protection concerns, but also said that those concerns might be met on remand. Two determined that the standard raised no equal protection problem, particularly in view of the range of local voting systems and ballot designs traditionally tolerated. (I was one of those two.) All four dissenting justices agreed that the December 12 deadline was illusory under both Florida law and federal law. Justice Breyer explained that neither the Florida Supreme Court nor the Florida Legislature adopted December 12 as the drop-dead date for counting votes, and that several provisions of federal law obligated Congress to count a state’s electoral votes based on election results determined after December 12. Justice Souter wrote: “There is no justification for denying the state the opportunity to try to count all disputed ballots now.” (I note that the Court’s vote did not divide strictly on party lines. While Justice Breyer and I were appointed by President Clinton, a Democrat, our colleagues in dissent were appointed by Republican presidents: Justice Stevens by President Ford, Justice Souter by President Bush, the elder.)
Less than two months into the aftermath, I will not venture any dire or definitive declarations about the implications of Bush v. Gore for judicial independence. The wisdom of the Court’s decision to intervene, and the wisdom of its ultimate determination, as I said earlier, await history’s judgment. The initial commentary has been mixed. Washington Post columnist Robert Novak, fearing a tumultuous political climax in the United States Congress had the recounts gone forward, praised “the bare majority of the high court” for sav[ing] “the country from th[e] potential constitutional crisis resulting from Gore’s doggedness.” Columnist Charles Krauthammer agreed: “Political tension would only have grown—this would not have been resolved until January!—and created a train wreck. The majority of the court wisely declined this reckless invitation to a true constitutional crisis.”
On the other side, author and columnist E. J. Dionne wrote: “The most troublesome aspect here is not that the five most conservative appointees on the court ruled in favor of the Republican presidential candidate. It is that the same five chose to intrude in Florida’s election process having always claimed to be champions of the rights of states and foes of ‘judicial activism’ and ‘judicial overreach.’ Five hundred fifty-four law professors signed on to a full-page newspaper ad declaiming in boldface: “It Is Not the Job of a Federal Court to Stop Votes from Being Counted.” And the New York Times reporter whose beat is the U.S. Supreme Court, Linda Greenhouse, observed: “[T]hese are justices who are accustomed to both bitter division—often by the same 5-to-4 alignment—and to moving on to the next case. But there is something different about Bush v. Gore that raises the question about whether moving on will be quite so easy. This was something more than a dispute rooted in judicial philosophy…. [H]ad members of the majority been true to their judicial philosophy, the opinion would have come out differently.”
Additional analysis, commentary, even counting are in the works, and I shall leave the flowing streams of words saved on PCs to the books and articles certain to appear. It may be fitting, however, to close my account of Bush v. Gore with this parting observation. In the weeks before the Court decided to hear the case, the editorial pages of major newspapers (though far from unanimous) contained abundant commentary urging the the Court to end the election controversy with a swift and final resolution. A national crisis was looming, this commentary maintained, and only the Supreme Court could avert it. The popular conservative columnist William Safire, an unlikely proponent of judicial intervention, wrote: “The Supreme Court (whose unanimous ruling against Nixon on the tapes led to his resignation) [can] put its imprimatur on the best way to decide who shall occupy the presidency. And the vast majority of Americans would readily accept the decision.” Less acceptable, perhaps, was the judicial solution proposed in a cartoon handed to me at a reception. It said: “I think they should let Ruth Bader Ginsburg flip a coin.”
Coin flipping aside, these sentiments reflect, it seems to me, long and widely held trust in the fairness and reasoned decision making of the U.S. federal judiciary. That trust is attributable not only to the fact that the United States Constitution, for well over two hundred years, has been understood to arm federal courts with authority definitively to declare the law, even in turbulent controversies involving the nation’s fundamental law. It is also a product of decision-making mores to which legions of federal judges adhere: restraint, economy, prudence, respect for other agencies of decision (an element elaborated on by Professor Dyzenhaus in his lecture), reasoned judgment, and, above all, fidelity to law. Whatever final judgment awaits Bush v. Gore in the annals of history, I am certain that the good work and good faith of the U.S. federal judiciary as a whole will continue to sustain public confidence at a level never beyond repair.