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Now she tells us. More than 12 years after the fact, retired Justice Sandra Day O’Connor said it was probably a mistake for the Supreme Court to hear Bush v. Gore and anoint George W. Bush as president of the United States.

“It took the case and decided it at a time when it was still a big election issue,” Justice O’Connor told the Chicago Tribune editorial board on Friday. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”

She continued: “Obviously the court did reach a decision and thought it had to reach a decision. It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

The result, she allowed, “stirred up the public” and “gave the court a less than perfect reputation.”



Justice O’Connor’s comments, as fascinating as they are, have to set some kind of record for detachment (she calls the court on which she sat for 25 years “it” — avoiding the more apt “we”) and also for understatement.

Granted, we don’t know for sure whether Justice O’Connor wanted to take Bush v. Gore. Only four justices have to agree to hear a case. But we do know that she sided with the majority on the actual decision, which stopped the recounting in Florida and gave a one-vote majority in the Electoral College to the man who lost the national popular vote. The ruling was a huge stain on the court’s reputation because it appeared to be — may well have been — blatantly partisan.

And to think that was back in the good old days, before Justice O’Connor retired and was replaced by Justice Samuel Alito, a dedicated movement conservative; before the court opened a flood of special-interest money in elections with the Citizens United decision; or threw out perfectly reasonable handgun restrictions in Washington, D.C. with Heller; or limited the scope of the Alien Tort Statute, frequently used to address human rights abuses abroad, with Kiobel.

With each instance of over-reaching, or protecting the interests of corporations against working people, the court’s reputation becomes even more “less than perfect.”