In the current discussion over Justice Ruth Bader Ginsburg’s comments about Donald Trump, some of her critics believe the Justice should recuse herself from any potential Court action deciding the 2016 election. But how often do these election-deciding scenarios occur?
Since 1789, there have been 57 presidential elections. The Supreme Court was directly involved in settling a dispute in the 2000 contest between George Bush and Al Gore, and five Justices sat on a commission that decided the 1876 race between Rutherford B. Hayes and Samuel Tilden. Other than that, the Court can get involved in settling disputes about the electoral process, such as about gerrymandering and voting rights, but it is rare for a presidential election to be disputed after Election Day in the nation’s highest court.
This week, Justice Ginsburg made candid comments about the GOP candidate, Trump, that caused him to demand her resignation from the Court. That seems highly unlikely, but there is the question if Ginsburg would decline to take part in any case before the Court deciding the 2016 presidential election’s outcome. (Note: Ginsburg later expressed regrets about making those comments.)
Long-time Supreme Court correspondent Tony Mauro offered his own candid assessment to Vanity Fair. “If the case is specifically about Trump — such as a hypothetical dramatic Trump v. Clinton disputed election case that echoes Bush v. Gore, I'd anticipate motions for her to recuse. Whether she does or not is entirely up to her — no one reviews justices' decisions to recuse or not recuse,” he told the magazine.
Earlier this week, our Lyle Denniston explained how Ginsburg's comments have sparked a discussion about judicial ethics and the Supreme Court. "The reality is that the code of judicial ethics has never been understood by most members of the Supreme Court as actually binding on them. Over the years, most Justices have voluntarily sought to observe the ethical norms, but they have drawn the line at having those enforced against them," he said. "They have done so as a matter of principle: the Founders intended the Supreme Court to be truly independent."
The 2000 and 1876 elections were disputed over vote counting and the legitimate slates of electors chosen for the Electoral College. In the recent 2000 dispute, Bush led Gore by a narrow margin in the state of Florida when the popular votes were first counted. Gore disputed the vote count and process; ultimately, the Supreme Court decided in Bush v. Gore that using different vote-count standards within Florida violated the 14th Amendment’s Equal Protection Clause and that a vote-recount couldn’t be completed by a December 12 deadline. (Ginsburg was on the minority of both parts of the decision.)
The 1876 scenario was unique in that the presidential election saw disputed groups of electors submitted by four states. Each of the states, Florida, Oregon, Louisiana and South Carolina, sent two rival slates of electors to Congress to be counted. Since Congress was deadlocked on party lines, it negotiated a compromise solution: a special commission of 15 people to decide the election. The commission consisted of five Senate members, five House members and five Supreme Court Justices. In the end, it was the vote of Supreme Court Justice Joseph Bradley that gave the election to the Republicans as part of a compromise to end Reconstruction.
An 1887 law changed how Congress can settle such a dispute without invoking a special commission including Supreme Court Justices in the process. The House and Senate would each serve as a referee, with the governor of the state in dispute as a tie breaker if Congress can’t agree on which slate of rival electors to choose.
So how could the 2016 election wind up in front of the Court?
If the 2016 presidential election is a close race, as expected, the specter looms of a potential court fight over vote recounts in states where the results are very tight. According to the National Conference of State Legislatures, 20 states and the District of Columbia have automatic recount provisions that kick in when elections are very close, and 43 states allow losing candidates to ask for a recount. And any dispute in the lower court system can wind up in the Supreme Court.
Complicating that disputed-voter scenario is the current 4-4 split on the Supreme Court. The more politically cynical court watcher could conclude that a 4-3 court without a recused Ginsburg would favor a Republican candidate, but in the unpredictable 2016 election it would be hard to even guess at the Court’s possible voting in that scenario. And if Ginsburg remained on the Court, it would still be split.
Of the current Justices, Ginsburg, Anthony Kennedy, Clarence Thomas and Stephen Breyer took part in the Bush v. Gore decision.
Scott Bomboy is the editor in chief of the National Constitution Center.
