The Supreme Court denied a recount in 2000 because it would have done 'irreparable harm' to George Bush

The wording of Scalia's concurrence of the verdict in Bush v. Gore

"The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election."^[2]

Criticism

(What about the 'irreparable harm' to Al Gore?)

The dissenting justices

The dissenting opinions were notable for their unusually harsh treatment of the majority. Justice Stevens' dissent concluded:^[4]

What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

I respectfully dissent.

The decision was also criticized by Harvard University law professor Alan Dershowitz, asserting in Supreme Injustice: How the High Court Hijacked Election 2000 that "the decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath." Some critics argue the majority themselves seemed to seek refuge from their own logic^[5] in the following sentence in the majority opinion:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.^[6]

The court's defenders argued that this was a reasonable precaution against the possibility that the decision might be read over-broadly,^[7] arguing that in the short time available it would not be appropriate to attempt to craft language spelling out in greater detail how to apply the holding to other cases. Critics, however, interpreted the sentence as stating that the case did not set precedent in any way and could not be used to justify any future court decision, and some suggested that this was evidence the majority realized its holding was untenable.^[8] It was seen by many as a departure from the stare decisis principle of paramount importance in the history of the Supreme Court and the American Legal system.

Bill Clinton's statements

In his autobiography My Life, United States President Bill Clinton wrote that "If Gore had been ahead in the vote count and Bush behind, there's not a doubt in my mind that the same Supreme Court would have voted 9 to 0 to count the vote and I would have supported the decision.... Bush v. Gore will go down in history as one of the worst decisions the Supreme Court ever made, along with the Dred Scott case."^[9]

^Sources:

1. Raskin, Jamin. "Bandits in Black Robes", Washington Monthly, March 2001. "But in Bush v. Gore, the Rehnquist majority did not even ask, much less explain, how Bush was personally injured by the hypothetical possibility that anonymous third-party citizens might have their ballots counted differently in Florida's presidential election." 
2. Bush v. Gore, On Application for Stay, Majority Opinion. 2nd last paragraph of Scalia's concurrence.
3. Tribe, Laurence H., "The Unbearable Wrongness of Bush v. Gore". George Mason Law & Economics Research Paper No. 03-33; Harvard Law School, Public Law Working Paper No. 72. Available at SSRN: http://ssrn.com/abstract=431080
4. Bush v. Gore, Dissent, Stevens.
5. Fliter, John. Review of The Rehnquist Court: Judicial Activism on the Right.
6. Bush v. Gore, US Supreme Court Opinion. (6th paragraph from end of Part II-B)
7. Lund, Nelson. "The Unbearable Rightness of Bush v. Gore". "... it’s important to remember that overly broad holdings can be worse than those that are too narrow. Broad holdings may effectively decide future cases that are factually dissimilar in ways that should be legally distinguished." 
8. Spillenger, Clyde. "Supreme court fails to argue recount ruling", UCLA Today. "This observation is the very antithesis of the rule of law." 
9. Hirschkorn, Phil. "Crowds line up for Clinton book", CNN.
   

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By: Enchiridion on 2008/05/14 PM 1:19:13. In this case there were no unified majority or minority opinions. The Justices filed individual opinions as to why they voted as they did. Therefore it is wrong to imply that Scalia's opinion was that of the majority. His was one of the majority opinions. Who got the most votes in the Florida election that year? The implication is that Gore suffered irreparable harm because he was judged the loser when he actually won. The problem with that is that a recount was in fact performed, paid for by the press and carried out by the State, and Bush was found to have won. You can argue that Gore might have been harmed, but in fact he was not. The question of irreparable harm is not nearly as important as "Who got the most votes?" It is possible that by selectively counting certain ballots and not others (absentee ballots from the Armed Forces were possibly undercounted) Gore could have been found the winner. However, exactly how ballots are counted is a matter for the State Legislature, not the Federal courts. Federal petitions charging discrimination in voting were thrown out by the Federal Courts. It is fair to say the Court did not do well under time pressure, but they had to rule quickly. Their opinions were inconsistent and not well written. However, the country was suffering ongoing harm by delay. Candidates for the top policy positions could not be signed up, or even properly recruited, until the outcome was determined.