Justice  /  Comparison

Why the Long Shadow of Bush v. Gore Looms Over the Supreme Court’s Colorado Case

In the fight over keeping Trump’s name on the ballot, the 2000 decision is a warning but not a precedent.

For several decades following the civil-rights era, the Court had been seen as a reformist institution. Bush v. Gore undermined that. “I think liberals have been hurt more by that misplaced view, because they had more to lose,” a conservative clerk told me. “The Supreme Court will break your heart.”

On November 6, 2000, the day before the election, Benjamin Ginsberg, a lead attorney for Bush, took his team to lunch at a Mexican restaurant across the street from campaign headquarters, in Austin. In “these last moments of sanity,” the dozen lawyers shared chips and salsa and “were careful not to drink,” he recalled. “We were talking about lawyers’ fantasies—walking up the steps of the Supreme Court to argue a case for your client. Somebody said, ‘What about a Presidential recount?’ And I said, emphatically, ‘That’ll never happen.’ ” Ginsberg had worked on many recounts in state and local races, but it was inconceivable at the level of President. “That turned out to be not a really good prediction. The whole period, the whole thirty-six days, was one of ‘Wow, I never thought we’d be doing this,’ ” he said.

In Trump v. Anderson, as in Bush v. Gore, there are many questions of law and fact, and thus many off-ramps that the Supreme Court could take to issue the least controversial ruling possible. The Justices could decide, for instance, that Trump did not participate in “insurrection or rebellion” under the meaning of Section 3, or that Section 3 does not apply to the office of President in order to keep him on the ballot. They could also send the case back to Colorado, or Congress, for fact-finding on Trump’s activities and statements, but that comes with the risk of delay.

Ginsberg recently teamed up with a progressive scholar of election law named Richard Hasen to submit an amicus brief in Trump v. Anderson. (During Bush v. Gore, Hasen was teaching at Loyola Law School, in Los Angeles. “I threw the syllabus out, and every week we talked about the latest cases in the dispute,” he told me.) Their brief does not take a position on whether the Supreme Court should affirm or reverse the Colorado Supreme Court; it merely urges the Court to decide something, and soon, because “kicking the can down the road would be far more fraught for the country” than it was even in 2000. “One lesson the Court has learned from Bush v. Gore is: they want to step in before their decision is so obviously about an election,” the former liberal clerk told me.