U.S. Supreme Court

Could a split Supreme Court cause a 'constitutional nightmare' in a presidential election standoff?

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New York University law professor Burt Neuborne is no fan of Bush v. Gore, the 2000 U.S. Supreme Court decision that ended a vote recount and paved the way for George W. Bush to become president.

But the nation could have been worse off if the court were shorthanded a justice and unable to resolve inconsistent court decisions, Neuborne says in an op-ed for the New York Daily News.

“Imagine what the nation and world would have looked like in 2000 with an eight-person Supreme Court,” Neuborne writes. “A 4-4 vote in Bush v. Gore would have affirmed the Florida Supreme Court’s decision to continue the recount. But the very real prospect existed of an inconsistent ruling in a parallel federal case pending in the Circuit Court. A 4-4 vote would have affirmed that decision, as well.

“No process would have existed for reconciling the inconsistent lower court decisions, and the country would have been plunged into a constitutional nightmare.”

If the Supreme Court had not acted in 2000, the election would have been “thrown into the House of Representatives,” where each state delegation would get a vote until one candidate won, Neuborne says. Past elections that went to the House in 1801 and 1876 were resolved after delays.

“In today’s world,” Neuborne says, “uncertainty about the identity of the next American President would affect the entire world. Doubts about whose finger will be on the nuclear trigger could set off unfathomable national security consequences, to say nothing of risking worldwide financial crisis, and plunging American democracy into the streets.”

Hat tip to How Appealing.

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