Bush v. Gore in the American Mind

Nate Persily

[Cross-posted at electionlawblog.com]

On this tenth anniversary of the Supreme Court's decision in Bush v. Gore it is worth examining how views of the decision may have changed since the decision and how attitudes toward the decision relate to contemporary attitudes toward the Court. This post describes results from a survey conducted by Stephen Ansolabehere and myself last summer, which included a question about Bush v. Gore. The full survey is available here. Amy Semet, Stephen Ansolabehere, and I have a work-in-progress that discusses these results in greater detail and that we hope to post in about a month.

The short story is that we are still divided as a country when it comes to perceived fairness of the Court's decision in Bush v Gore. We are divided by race, party, and ideology. The decision, however, is fading in the public memory, as younger respondents and less educated respondents are more willing to say they do not remember the decision.

Our survey asked:

"You may remember that ten years ago the U.S. Supreme Court issued a decision in the case concerning the counting of ballots cast in Florida in the 2000 presidential election contest between George Bush and Al Gore. Do you think the Supreme Court decided the case fairly or unfairly or don't you remember?"

Yes, it decided the case fairly – 33.7%
No, it did not decide the case fairly – 35.2%
I don’t remember – 28.4%
Refused to Answer – 2.6%

The breakdown of responses according to age, education, race, party, ideology, and Bush approval is available here. Ten percent of African Americans, as compared to 40 percent of whites, think the decision was fair. 79 percent of Strong Republicans but only seven percent of Strong Democrats considered the decision fair, which is about the same breakdown one sees on the question as between those who strongly approve or strongly disapprove of the Bush presidency. All of these variables are statistically significant in regressions in which perceived fairness of Bush v. Gore is the dependent variable.

For most observers, the public opinion question surrounding Bush v. Gore is whether the Supreme Court suffered at all in the public mind as a result of its decision. Most studies have found partisan and racial polarization in opinion toward the Court in the immediate aftermath of Bush v. Gore but a return to “normal” by September 11th 2001 if not before. (See Caldeira, Gibson and Spence, “The Supreme Court and the U. S. Presidential Election of 2000", British Journal of Political Science 33:535-556 (2003); Mate and Wright, “The 2000 Presidential Election Controversy”, in Public Opinion and Constitutional Controversy (Persily, Citrin & Egan eds, 2008).

All such studies merely look at attitudes toward the Court (particularly “confidence in the Court”) and notice that the structure of support is similar to that existing pre-Bush v. Gore. No study, so far as we are aware, has looked at contemporary attitudes toward Bush v. Gore and related them to attitudes toward the Court. When we do so, we find the picture to be more complicated than conventional wisdom suggests. Our survey included questions on both confidence in the Court and job approval. (“Below is a list of institutions in this country. As far as the people running these institutions are concerned, would you say you have a great deal of confidence, only some confidence, or hardly any confidence?” The list of institutions included: the Military, the U.S. Supreme Court, Congress, Churches, Corporations, and the President. To measure approval, we simply asked “Do you approve of the job the U.S. Supreme Court is doing?”) Consistent with the conventional wisdom, the simple cross tabs display no significant difference in answers to these questions among those who think Bush v. Gore was fair or unfair.

In regressions predicting both confidence and approval in the Court, however, opinion on Bush v. Gore is statistically significant. For confidence, its effect is small, and overhwhelmed by general confidence in other institutions. For approval, the effect is much greater – and more substantial, for example, than opinion on Roe v. Wade. When holding all other political, ideological, and demographic variables at their mean, the probability of approving of the Court differs by about twenty percentage points between those who thought the decision was fair and those who thought it was unfair.

This finding surprises me, even to the point that I don’t yet believe it. It is also not obvious how one should interpret it. Does the fact that opinion on Bush v. Gore has some predictive power on approval of the Roberts Court in 2010 mean that the decision has had long-lasting effects? Or does opinion on Bush v. Gore serve as a proxy for something else, such as comfort or discomfort with the Court as a political institution? Moreover, are the cross tabs, which show no appreciable difference in attitudes toward the Court based on perceived fairness of Bush v. Gore, really more relevant in addressing the million dollar question whether the Court has paid a price in public opinion for its decision?

For those who could not care less about public opinion toward Court decisions, either because they view survey research as akin to astrology or as irrelevant in the context of interpreting the Constitution, the Indiana Law Review has just published a symposium on election law. My contribution -- “‘Celebrating’ the Tenth Anniversary of the 2000 Election Controversy: What the World Can Learn from the Recent History of Election Dysfunction in the United States” – is available here.
Posted 1:11 PM by Nate Persily [link]