'Conservative Court' That 'Made Bush President' Now 'Balanced'?

June 29th, 2008 12:21 PM

As a deeply divided Supreme Court issued 5-4 rulings the past few weeks bouncing from liberal to conservative interpretations of the law, something was woefully missing from the coverage: journalists apologizing to the nation for regularly insinuating that the Court's December 2000 decision concerning Bush v. Gore was politically based.

After all, for seven and a half years, a regular media meme has been that a "conservative Supreme Court" gave George W. Bush the presidency by stopping the recounting of votes in Florida.

Yet, as the Washington Post reported Sunday, today's Court, though "sharply divided ideologically on some of the most fundamental constitutional questions" as well as being "roughly balanced," is probably more conservative than it was in 2000 as a result of recent appointments (emphasis added throughout):

President Bush has provided the model with his nominations of Roberts, to continue the conservative legacy of former chief justice William H. Rehnquist, and Samuel A. Alito Jr., to replace the former justice found most frequently in the middle, Sandra Day O'Connor.

Hmmm. So, if conservative Roberts replaced the conservative Rehnquist, and conservative Alito replaced the moderate O'Connor, doesn't that make today's court slightly more conservative than the one that supposedly gave Bush the presidency for purely political reasons?

Furthermore, according to the Post:

[A]s justices finished their work last week, two overarching truths about the court remained unchanged: It is sharply divided ideologically on some of the most fundamental constitutional questions, and the coming presidential election will determine its future path.

A victory by the presumptive Democratic nominee, Barack Obama, would probably mean preserving the uneasy but roughly balanced status quo, since the justices who are considered most likely to retire are liberal. A win for his Republican counterpart, John McCain, could mean a fundamental shift to a consistently conservative majority ready to take on past court rulings on abortion rights, affirmative action and other issues important to the right.

A fundamental shift to a consistently conservative majority? Haven't media been telling us for seven and a half years that the reason Al Gore isn't president is because a conservative Supreme Court stopped the counting of votes in Florida in order to give Bush the White House?

In fact, CBS's Lesley Stahl made this case just two months ago during her "60 Minutes" interview with Justice Antonin Scalia:

LESLEY STAHL: People say that that decision was not based on judicial philosophy but on politics.

ANTONIN SCALIA: I say nonsense.

STAHL: Was it political?

SCALIA: Gee, I really don’t wanna get into - I mean this is - get over it. It's so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn't even close. The vote was seven to two. [...]

STAHL: It ended up being a political decision.

SCALIA: Well you say that. I don't say that.

STAHL: You don't think it handed the election to George Bush?

SCALIA: Well how does that make it a political decision?

STAHL: It decided the election.

Actually, Lesley, the Court didn't decide the election, as a consortium of media outlets in 2001 determined that Bush would have still won Florida if the recounts had continued, a fact folks like you regularly ignore.

Yet, maybe more important, the recent decisions by the Court, and in particular the fact that Justice Anthony Kennedy is not the staunch conservative folks on the left often like to depict him as, should make it clear that the 2000 iteration of this judicial body was at the very least quite moderate, and conceivably tilting a tad to the left.

At the time, the clear liberals on the Court were Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens. On the right were William Rehnquist, Scalia, and Clarence Thomas. Somewhat in the center -- the swing voters -- were Kennedy and Sandra Day O'Connor.

Add it up, and the supposedly "conservative Supreme Court" in 2000 had four liberals, three conservatives, and two somewhat moderate swing voters.

With this in mind, and given recent split decisions, maybe it's time media take Scalia's advice concerning the Florida recount and just "Get over it!"

This is especially true if press outlets are going to continue to make the case in the next four months that people better vote for Obama if they don't want to see the Court turn conservative.

*****Update: The Los Angeles Times on Sunday also declared the current Court "evenly divided" (emphasis added):

The Supreme Court ended its annual term last week just where it began: evenly divided between conservative and liberal blocs of four justices, with the deciding votes cast by Justice Anthony M. Kennedy. [...]

The near-even split also carries an election-year message for voters about the power of the presidency to set the future direction of the high court.

Once again, if today's Court is evenly-divided, what was it in December 2000 with O'Connor there instead of Alito? Doesn't this completely destroy the argument that a conservative Court gave the White House to George W. Bush?