Eminent Domain

Bush v Gore is one of those Supreme Court cases that can cause a near riot in mixed company. Even as a young lad (I was a freshman in college when it came down), I knew that the case was going to be stuck in many a craw for years to come. Recently, members of the Supreme Court have vocally defended their actions in the case. Here is what Justice Scalia had to say recently...

Scalia, answering questions after a speech, also said that critics of the 5-4 ruling in Bush v. Gore need to move on six years after the electoral drama of December 2000, when it seemed the whole nation hung by a chad awaiting the outcome of the presidential election.

"It's water over the deck - get over it," Scalia said, drawing laughs from his audience. His remarks were reported in the Gannett Co.'s Journal-News.

Scalia has held this position for a long time. It seems like people always ask him about the case during Q&A sessions. I'm sure he's sick of it.

Justice Kennedy has chimed in recently too...

"A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."

Kennedy said the justices didn't ask for the case to come their way. Then-Vice President Al Gore's legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.

I really need to pick up Greenburg's book. I've heard nothing but rave reviews. Hopefully, I can swing by Borders Monday.

Former Justice O'Connor has something to add too...

O'Connor said the Florida court was "off on a trip of its own."

She acknowledged, however, that the justices probably could have done a better job with the opinion if they hadn't been rushed.

Still, O'Connor said the outcome of the election would have been the same even if the court had not intervened.

She was referring to studies that suggest Bush would have won a recount limited to counties that Gore initially contested, although other studies said Gore might have prevailed in a statewide recount.

I think O'Connor is on the mark here. The Florida Supreme Court was off in legal la la land. I also don't think much of the Court's per curiam opinion. I liked Rehnquist's concurrence much more, but it only had three votes. But that is what happens when the Court is rushed to produce something. I think that the Pentagon Papers case showed us that too. Justice Harlan's dissent, with its list of unanswered questions, showed just how bad a rushed Supreme Court ruling can be.

If you want to read an excellent book about the recount and the court battles, I would recommend Judge Richard Ponser's Breaking the Deadlock. Posner meticulously takes apart the entire time line of event and provides analysis and commentary. If you are one of those people who still can't "get over it," it's a worthwhile read.