"It took the case and decided it at a time when it was still a big election issue, Maybe the court should have said, 'We're not going to take it, goodbye.'"
-- Former Supreme Court Justice Sandra Day O'Connor, on Bush v. Gore
There is a saying, "Better late than never." This is one of those rare times, however, that that probably doesn't apply. It's the judicial equivalent of saying 13 years later, "Hmmm, maybe I should have thrown the life preserver to that drowning man."
Don't get me wrong, it's a nice thought, and it's swell to hear one of the five justices who voted in the affirmative say it might have been a bad idea to take the case. After all, being able to say, "Nyah, nyah, see I told you so," is always good for the soul. But no matter how good those on the outside feel, when someone has taken their last breath and sunk down to the bottom of the ocean floor, Chicken Soup for the Soul isn't going to bring them back to life.
And the thing is, it wasn't just that Ms. O'Connor was pondering whether it was right to simply hear the case, but she also suggested what a bad job those who voted for it did.
"It turned out the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day."
You must understand, the Supreme Court is notoriously close-lipped about its procedures and even more uncritical of itself in public. For a Supreme Court justice (present or former) to publicly question one of their own decisions -- and a decision that is probably one of the handful of most impactful decisions in U.S. history -- is so rare that you have to assume that her polite disclaimers of "maybe" and "probably" mean, "Okay, I've given this a lot of thought, and I can no longer keep it to myself inside or I will literally burst before your eyes."
It's easy to lose track of some things about the case, after the passage of time, as well. Keep in mind, though, that what was so clearly and shamelessly galling about the Bush v. Gore decision that showed how blatantly political it was, wasn't just that the Supreme Court simply heard the case, or made the problem worse, but that they signed out this critical decision -- again, of the the most impactful in U.S. history -- as not setting precedent, but just applying this one time, and one time only.
So, former Justice O'Connor's acknowledgement that "probably the Supreme Court added to the problem" doesn't just speak volumes, it shouts them with that megaphone George Bush used standing on top of cars after 9/11.
Though not particularly better late than never, here is, of course, a couple "better late" aspects of her comments, and that's that it gives less comfort to those hiding behind supporting its defense, and also it will hopefully give reflective pause to justices in the future. Small comfort for what transpired from the Bush Presidency, but comfort.
Well, it's "semi-better late to all but people like Justice Antonin Scalia, who, when asked about Bush v. Gore, famously answered, "Get over it." Clearly, this is a standard Mr. Scalia lives by -- when the Supreme Court has made a decision, that's the decision. Final, finuto, done. It's in the past, accept it, and move on.
Unless it's about re-visiting the Civil Rights Act.
Robert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting.
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