BUSH V. GORE PROPAGANDA AT 25

National Review

 

Bush v. Gore Propaganda at 25

By Dan McLaughlin

December 18, 2025 12:56 PM

 

Over at SCOTUSBlog, Erwin Chemerinsky looked at the legacy of Bush v. Gore on its 25th anniversary. His explanation of what happened in the case, geared for the law student reader too young to remember the facts, leaves out a number of key factors.

 

First, in referencing the TV networks that had called Florida early for Al Gore and then reversed, he omits the trigger for the whole mess: Fox News and other networks declared that Gore had won Florida while the polls were still open in the reddest part of the state, the panhandle, which is in a different time zone from the rest of Florida. It was the biggest election-affecting media failure in American history. We will never know quite how many people got off the line and went home, but there were many reports at the time that this happened. The whole landscape of the recount would have been different, and perhaps the litigation would have been avoided entirely, had Bush’s lead in the original count been 1,500 votes instead of 537. It does not require much imagination to picture how left-leaning commentators would have reacted had this happened in a predominantly black area.

 

Second, Chemerinsky glosses over what happened at the Florida Supreme Court, focusing entirely on the standard of review. He leaves out the fact that Gore strategically sought a partial recount of only the places where he thought he could gain votes, and also how egregiously the court acted in effectively rewriting Florida statutes. The true story of the Bush v. Gore litigation was not that the U.S. Supreme Court involved itself in deciding a national election but that it weighed in to prevent a rogue state court from deciding one. Chemerinsky quotes Justice John Paul Stevens’s dissent, which complained that the position by the majority of the Court “can only lend credence to the most cynical appraisal of the work of judges throughout the land. . . . 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.” But the ellipses here are significant. Stevens’s point was not to attack the integrity of his colleagues but to observe that their decision was a result of their loss of confidence in the Florida courts:

 

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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.

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For Chemerinsky to switch to the passive voice in saying that “the decision’s largest significance may be from the widespread perception that the justices were simply motivated by their own partisan preferences as to who should be the next president,” that “there is a perception that Bush v. Gore decided the 2000 presidential election,” and that “the widespread perception (which persists to this day) was that the court’s decision was less about the law and much more about the political views of the justices” very carefully elides the question of who has promoted that perception. Nobody would write that there is a perception that the 2020 election was stolen without addressing whose argument that was and who popularized it. Leading Democrats, as well as their intellectual, pundit, and entertainment classes, spent years and years attacking the legitimacy of the 2000 election — not the last American election they would treat that way. In doing so, they sowed the seeds of mistrust and conspiratorial thinking around elections and courts that were essential to the full flowering that would bring us to January 6. Yet, nearly five years later, the effort to propagandize what actually happened in Bush v. Gore hasn’t ended.

 

Bush v. Gore was not the Court’s finest hour, and few would say that it was. The per curiam opinion was drafted in haste, and it bore the fuzzy-thinking stamp of Justices Anthony Kennedy and Sandra Day O’Connor. While it was sound enough as a matter of logical reasoning, it made no effort to justify itself in originalist terms. The concurring opinion by Chief Justice William Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas (and unmentioned by Chemerinsky), was much sounder, but in the press of time and the institutional pressure for unanimity, they nonetheless joined the per curiam opinion as well. The fact remains that Bush led in every count that was taken, he would likely have won outside of the margin of controversy if not for media malpractice, and the Court’s timely action prevented a rogue state court from overturning a national election.

 

If Chemerinsky wants to reflect on the malign aspects of the Bush v. Gore legacy, he should look closer to home.