Upon further consideration, Mr. Nader

The recent Supreme Court decision that stripped the Voting Rights Act of 1965 of its essential enforcement powers reveals once again how political the Court can be. Never was it as apparent as on December 12, 2000 when the Court ruled in favor of George Bush over Al Gore in the contested presidential electoral vote in Florida the previous month.

Besides revealing the bald-faced political bent of the Supreme Court, it also allowed us to once again consider Ralph Nader’s assertion that there wasn’t a “dimes worth of difference” between George W. Bush and Al Gore. There is no better place to look first than the Supreme Court itself.

With George Bush as president, two vacancies were created in 2005, one when Associate Justice Sandra Day O’Connor retired and the other several months later when Chief Justice William Rehnquist died. Bush nominated John Roberts to replace O’Connor. After Rehnquist died, Bush nominated Roberts to fill his spot as Chief Justice. Then to fill the remaining vacancy, he nominated Samuel Alito to be the ninth justice on the Court (after having unsuccessfully tried to place White House Counsel Harriet Miers on the High Court).

In simplistic terms, the mathematics of the changes in the Supreme Court during the Bush Administration was:

Minus one moderate (Sandra Day O’Connor)

Minus one conservative (William Rehnquist)

Plus two conservatives (John Roberts and Samuel Alito)

On the surface, it does not appear to be that dramatic a change, but with the Rehnquist Court there were two “swing votes” (O’Connor and Anthony Kennedy) who could side with either the conservative or liberal side of an issue. That doubled the possibility that one justice would leave the conservative side and join the liberals. But that didn’t happen in Bush v. Gore as both O’Connor and Kennedy voted for the Bush position.


The Roberts Court has not always ruled in favor of the conservative position on an issue. The Court most recently advanced the cause of gay rights and in 2012 it sustained the inclusion of the individual mandate in the Patient Protection and Affordable Care Act. But in many more decisions, the Court sided with the more conservative side of the issue. In 2007, it upheld Congress’ partial-birth abortion ban; in 2008 it upheld Indiana’s photo-id to vote law. The same year the Court struck down a strict law in the District of Columbia that significantly limited gun ownership or possession. The Court’s 2010 decision in Citizens United v. Federal Elections Commission essentially ruled that political campaign contributions are protected under the First Amendment, essentially saying that “corporations are people.” That decision along with the recent ruling to eviscerate Section 4 of the Voting Rights Act of 1965 have stripped away many of the voting rights that were won following the Civil War (see editorial in the St. Louis Post-Dispatch: 150 years after Gettysburg, the work of the Civil War remains).

And in other ways, the Bush Administration was characterized by one decision after another that were detrimental to the country. In almost all these cases an Al Gore Administration would likely have acted differently. To mention just a few:

  1. Lack of coordination among intelligence agencies prior to September 11, 2001 that may have allowed the attacks of that day succeed. While we are not sure how a Gore Administration would have gathered and interpreted intelligence information, we do know that it would not have had Condoleezza Rice as National Security Advisor. It was Rice who ignored warnings coming up the chain.
  2. Initiating a war against Iraq for no particular reason other than the discredited belief that Iraq was in possession of weapons of mass destruction.
  3. Unnecessary and destructive tax reductions for the wealthy. This thoroughly destroyed the budget surplus that had been crafted in the Clinton Administration and played a key role in sending the economy into a recession.
  4. No Child Left Behind (also known as “No Test Left Behind”)

Back to Nader. There is overwhelming evidence that the nearly three million votes that Nader received in 2000 deprived Gore of victory. Nader did not express regret; he ran again in 2004 and 2008. Whether or not Nader threw the 2000 election to Bush, the fact is that there was a tremendous amount of difference between Bush and Gore and Nader was blind to it. There is no doubt that we need to clean up our electoral system in a way that includes the presence of third-party candidates, but when that happens, all parties need to be vigilant. We cannot afford any more thrown-away elections.