A Response to Justice Scalia on Bush v. Gore

In handling a Bush v. Gore question from the audience at Iona College the other day, Justice Scalia said:

“It’s water over the deck — get over it”

But the suspension of democracy in Florida in 2000 is not something to “get over” any more than other poorly decided Supreme Court decisions such as:

  • Plessy v. Ferguson’s holding that “separate but equal” race discrimination was OK, or the
  • Dred Scot decision holding that slaves could not sue in federal court since no slave or descendant of a slave could be a U.S. citizen, or
  • Korematsu v. United States, holding that U.S. citizens of Japanese ancestry citizens could be summarily relocated to detention camps during WW II based solely on their race.

In fact, Bush v. Gore was worse than all three. For each decision above could be overturned by the voters either in Congress or by constitutional amendment. But since Bush v. Gore dealt with the actual disenfranchisement of voters, it could not. All legally cast ballots should have been counted.

Bad judicial decisions are not something to “get over,” but are mistakes to be learned from.


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