Would You Call the U.S. a Democracy?
E.J. Dionne is very concerned about American democracy. "Here’s a hypothetical for you," he muses at the end of his recent column on the Obamacare lawsuits now headed to the Supreme Court. "First, the Supreme Court issues a ruling that installs a conservative president. Then, he appoints two conservative Supreme Court justices who then join with three of their colleagues to make mincemeat of the greatest achievement of a progressive president elected by a clear majority. If such a thing happened in any other country, would we still call it a democratic republic?"
I don't know about his hypothetical. But let's look at the actual circumstances to which he refers -- he is, of course, talking about the George W. Bush presidency. When I examine the actual facts surrounding the Bush election and the installation of the two Supreme Court justices he mentions -- John Roberts and Samuel Alito -- I'm happy to report that yes, E.J., there is an American democratic republic.
Start with Dionne's timeline, which is just a mite compressed. He omits the 2004 election, which returned Bush to the White House with a solid majority of the popular and electoral votes. Then Bush appointed Roberts and Alito to the court. That seems quite democratically legitimate to me. Is Dionne arguing that the Supreme Court unjustly deprived the Democrats of the 2004 election as well?
I suppose you could argue that Al Gore would naturally have taken the White House in 2004 had he been elected in 2000. But I'm rather skeptical. Since World War II, guess how many times a president has been succeeded by a two-term president of his own party. That's right: never. The longer your party is in office, the more the scandals and the discontent accumulate. Had Al Gore succeeded Bill Clinton, a Republican might well have succeeded him in 2004. And because justices tend to wait to retire until a president of their own party is in office, the results would not have been any different than they were.
But that's actually not the biggest problem with Dionne's argument. The biggest problem is that there's really very little evidence that the Supreme Court ruling in Bush v. Gore that put an end to the recount actually changed the outcome of the election.
No, seriously, pick your jaw up off the ground and go through the timeline yourself. I did it last year for the Daily Beast. Basically, under most realistic scenarios, Bush would have won the election anyway. To think otherwise, you have to think that absent the court's ruling, a statewide recount would have occurred, that all the counties would have counted "overvotes" (where a ballot was cast for more than one candidate but the second candidate was a write-in of the first candidate's name), and that they would have counted those votes in the specific way that the newspaper consortium did. The Florida Supreme Court's ruling had them counting undervotes (incomplete marks for a presidential choice), not overvotes, and though one judge has said he would have, a local paper has said that only a few counties were considering counting the overvotes -- not enough to have put Gore over the top.
Moreover, political scientist Chris Lawrence has made a pretty convincing argument that the case would have ended up at the U.S. Supreme Court in the end anyway, even if it had let the (really bad, and in my opinion, nakedly partisan) original ruling by the Florida Supreme Court stand. Everyone in the electoral system and the campaigns, and let me add the electorate, was pretty nakedly interested in only one thing: seeing their guy get elected. Democrats showed little interest in counting all the votes until their preferred tactic of counting some of the votes seemed to be failing, and Republicans were interested in abiding by the courts only when those court rulings went their way. The resulting mess was going to end up at the Supreme Court one way or another.
There are lots of counterfactuals in which the Supreme Court emerges from this sorry story without so many Democrats convinced that it stole the election for their president. There's really only one counterfactual in which the U.S. emerges with Al Gore as president, and it is one of the least likely. A friend refers to the ironclad belief that conservative justices stole the election for the Republican Party as Bush v. Gore Trutherism. That's not quite fair, but it's not exactly unfair, either. Bush almost certainly would have won the recount no matter what the Supreme Court did. And our current Supreme Court would look ... well, pretty much exactly like it does now. American democracy was certainly tainted by the horrid display of naked partisanship that both sides put on in Florida. But it was not undermined by a self-perpetuating court that hand-selected the fellow who would nominate their successors.
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