LIANE HANSEN, host:
Ten years ago today, the U.S. Supreme Court handed down one of its most controversial decisions. The case was Bush versus Gore. At issue was a Florida supreme court ruling that order a statewide recount of ballots in the 2000 presidential election. At stake was who would become the leader of the free world.
The high court's ruling ended the recount and put George W. Bush in the White House and it began a debate over separation of powers that continues to this day.
Jeffrey Toobin writes about legal affairs for the New Yorker. He wrote about the ruling in the magazine's December 6th issue. He's in a studio in our New York bureau. Thanks for being with us, Jeffrey.
Mr. JEFFREY TOOBIN (The New Yorker): Good to be with you.
HANSEN: I want to start with a passage from the Bush v. Gore ruling. It says -and I'm quoting - "None are more conscious of the vital limits on judicial authority than are the members of this court. And none stand more in admiration of the Constitution's design to leave the selection of the president to the people through their legislatures and to the political sphere." Now, you argue in the New Yorker that that court in fact overstepped those limits. Explain.
Mr. TOOBIN: Well, when you read a passage like that in a Supreme Court opinion you always know there's a "but" coming. Which means, but we're still going to take charge of what Florida's doing anyway, and that's what they did. Is that -what made the Bush v. Gore decision so controversial is that you had a group of nominally conservative justices who nominally believe in states' rights, who nominally believe in judicial restraint, jumping into a state election contest for the first time in American history and essentially shutting it down.
And that's troubled people then and it troubles some people now.
HANSEN: Well, the court said that allowing the Florida recount to continue would be a violation of the Equal Protection clause of the 14th amendment. How did the justices reach that conclusion?
Mr. TOOBIN: Well, the theory behind the decision was that because there were going to be recounts conducted in different counties, according to each county's version of how to determine which is a valid vote, that was not equal protection to the loser - potentially George Bush - and thus would deprive him of his rights to equal protection of the law.
HANSEN: Sounds a little convoluted.
Mr. TOOBIN: Well, didn't persuade me. The problem with the court's ruling is that there have always been in every state many different ways of counting votes. There are different voting systems - some people have punch cards, some people have optical scan. And to decide all of a sudden that a recount system that had been in place for Florida for many years and was similar to the recount system in place in many states was somehow a violation of the equal protection rights of George W. Bush, when at the same time the conservatives on the court were cutting back on the original purpose of the equal protection clause, which was to protect African-Americans and other minorities, prompted a great deal of cynicism about the majority's ultimate motives.
HANSEN: You note in your magazine piece that unlike other Supreme Court decisions, this one made history. But Bush v. Gore has never been cited as precedent, and I suppose one could argue that because the case is unique, right? So, are there circumstances that this case could be cited in other cases?
Mr. TOOBIN: Well, the pattern at the Supreme Court is that when a big case happens it starts to work its way into the bloodstream of the court. And it gets cited not necessarily for the central holding but for just any part of the decision. And what is curious is that the court has never found a reason to cite it.
There is a celebrated, perhaps notorious, sentence in Bush v. Gore where the court says, well, we don't want this decision cited for the future. Again, which lent cynicism to the motives of if you thought this was a decision worthy of respect in the future, why shouldn't you want it cited in the future?
HANSEN: The Bush v. Gore ruling was five to four. So, in effect, did one person decide who would become the 43rd president of the United States?
Mr. TOOBIN: I think it's safe to say. Which one of the justices was the one possibly open to switching sides? Maybe Anthony Kennedy, maybe Sandra Day O'Connor. Four of the justices from the Bush v. Gore court are now gone. But it is worth pointing out that if the court had allowed the recount to proceed, it is not a certainty that Al Gore would have won. It simply would have had a statewide recount. There's a great deal of historical controversy over who would have won if the recount had proceeded. I think the only fair answer to that question is we'll never know for sure.
HANSEN: Jeffrey Toobin writes about legal affairs for the New Yorker magazine. He's also working on a sequel to his book about the Supreme Court called "The Nine." He joined us from New York. Thanks a lot.
Mr. TOOBIN: Thank you.
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