Conflicts of interest in Bush v. Gore: Did some justices vote illegally?

CONCLUSION

Immediately after the Supreme Court's decision in Bush v. Gore, it was widely said that no one could imagine the Court's majority voting the same way if the identities of the parties had been reversed-if Al Gore had received a plurality in Florida of a few hundred votes, and if George W. Bush had been demanding recounts. But time and subsequent events have obscured that observation and blunted curiosity into the legal effects of the decision and what it signifies about the current nature of the Court as an institution.

If the press reports concerning Justices O'Connor385 and Scalia386 are accurate, both of them violated the federal judicial conflict-of-interest statute and the Constitutional due process clause by participating in Bush v. Gore. It is difficult to come to the same conclusion regarding Chief Justice Rehnquist simply because the press reports themselves are equivocal on whether facts existed that would have created a conflict of interest.387 Case law would not require that Justice Thomas recuse himself, even if all the press reports concerning him are true.388

The second Justice John Marshall Harlan served on the Supreme Court from 1955 to 1971. He belonged to the Republican party before he was nominated,389 but after he took his seat on the Court he stopped voting in elections.390 It was not that Justice Harlan lacked commitment to a point of view. For most of his tenure on the Court, he was its most conservative justice, and he clearly earned the subtitle of one of his biographies: Great Dissenter of the Warren Court.391 One of his law clerks later recalled that "[o]ne day, at breakfast, the Justice casually remarked that he had never voted since he became a judge. It was wrong, he thought, for a member of the Supreme Court to think of himself as a Democrat or Republican, even for the minute it took to cast a ballot."392

During Justice Harlan's service on the Court, his refusal to vote in elections was seen as unusual but among the best evidence of his integrity, because it was a simple and unassuming practice that could have no other meaning. But if he were on the Court today, many people would view it not as evidence of integrity but instead as proof of unreliability, a quirkiness that suggests that he might not do what he would have been put on the Court to do. Imagining Justice Harlan on the Court today-and the reaction he would cause in some quarters-crystallizes for those versed in history how the Court itself has been damaged by the willingness of some to think of it as another kind of legislature rather than as a genuine court.

That damage has spread to some other parts of the federal judiciary. According to Judge Michael J. Luttig of the Fourth Circuit,

Judges are told "You're appointed by us to do these things." So then judges start thinking, Well, how do I interpret the law to get the result that the people who pushed for me to be here want me to get? . . . . I believe that there's a natural temptation to line up as political partisans that is reinforced by the political process. And it has to be resisted, by the judiciary and by the politicans.393