Scalia: Al Gore made me do it

The associate justice says he and his colleagues had no choice but to intervene in the 2000 election.

Published November 22, 2005 8:49PM (EST)

There's been a lot of talk about rewriting history in the past few days, and it seems that Supreme Court Justice Antonin Scalia must be feeling a little left out.

During a speech in New York last night, Scalia said that he and his fellow justices intervened in the 2000 election because Al Gore made them do it. "The election was dragged into the courts by the Gore people," Scalia said. "We did not go looking for trouble."

As a general matter, of course, nobody can drag the Supreme Court into anything. As Supreme Court Rule 10 says, "Review on a writ of certiorari is not a matter of right, but of judicial discretion." Scalia and his colleagues used that discretion to grant review in a case brought not by "Gore's people" but by a man named George W. Bush.

Be that as it may, Scalia said last night, "The issue was whether Florida's Supreme Court or the United States Supreme Court [would decide the election]. What did you expect us to do? Turn the case down because it wasn't important enough?"

According to the New York Post, Scalia then "pointed out that studies by news organizations after the election showed Bush still would have won a Florida recount." But as Scalia surely knows, that after-the-fact justification is only half right. While post-election studies indicated that the recount the Florida Supreme Court ordered (and the U.S. Supreme Court stopped) would have led to a Bush victory, a recount of all the state's ballots would have handed Florida -- and the White House -- to Gore.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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