Five Justices Picked a President. We're Still Paying.

Bush v. Gore turns twenty-six this month. Dan Perry and Cliff Schecter trace what actually followed.

Cliff’s Note: This is a co-production with Dan Perry of Ask Questions Later. Dan’s one of the smartest international/political analysts out there—it’s why the Associated Press made him their chief editor in Europe, Africa, and the Middle East. If you’re looking to get the oft-secret motivations of global powers--and how they affect the U.S.--I strongly recommend subscribing to AQL,

by Dan Perry and Cliff Schecter

Most historical turning points are obvious. Pearl Harbor. The assassination of John F. Kennedy. September 11. At the time, people understand they are witnessing events that will shape everything that follows--often in ways that cannot yet understand.

December 12, 2000, was different.

Quick, what happened that day? You don’t know? That puts you in the company of most Americans.

And yet there is a serious argument that no day during the past quarter century--and few in U.S. history--had greater long-term consequences on the health, wealth and welfare of our republic. That was the day the Supreme Court--in a partisan 5-4 decision that will live in infamy--decided in Bush v. Gore to ignore the traditional role of states in administering their elections (as laid out in the Constitution) and shut down vote counting in Florida with an unnecessary, arbitrary deadline, and “selected” George W. Bush as the 43rd President of the United States.”

The highly partisan decision reeked of bias and corruption.

The Florida Governor at the time was none other than George W. Bush’s brother Jeb. Four of the five members of the right-wing majority that ruled in favor of Bush had been elevated to The Court during the presidency or vice presidency of his father, George H.W. Bush. And what was done that day in Washington likely altered the trajectory of American foreign policy, constitutional law, political institutions, and even the political culture from which later presidents emerged, in ways both profound and incredibly harmful to the American republic.

In fact, it could be argued that that day was the beginning of the division, decadence, and decay of American democracy we’ve witnessed over the past quarter century. In short, it kicked off a long decline - with a few interregnums providing the illusion of hope - of the United States as a superpower that commanded the respect of the world.

This is, of course, a counterfactual, and counterfactuals can never be proved. Yet almost twenty-six years later, enough has happened that some consequences appear remarkably direct, while others remain likely or plausible, even if impossible to establish with certainty. Taken together, they suggest that one of the defining moments of modern American history was not a war, a terrorist attack, or an election night.

It was a Supreme Court decision issued on an otherwise ordinary Tuesday afternoon. The banality of evil, as they say. That it was a 5-4 decision split down partisan lines - after the Supreme Court had spent years trying to decide the most controversial cases unanimously, or with strong majorities so as to limit division among the American populace (Brown vs Board, for example, was unanimous, while Roe v. Wade was decided 7-1, with one justice abstaining) couldn’t have been more apropos.

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The war that probably never happens

The strongest argument concerns Iraq.

Whether Al Gore could have actually prevented the attacks on September 11 is impossible to know--though as a policy wonk one could guess he wouldn’t have been clearing brush on a Texas ranch discussing ending stem-cell research while presidential briefings were being created by his national security team with titles like “Bin Laden Determined ot Strike in the U.S.” A reasonable assessment is a Gore Administration would have been less likely to miss vital and available intelligence,, and would have devoted greater attention to terrorism.

Had the attacks occurred under President Gore, the United States would almost certainly still have attacked Afghanistan. The Taliban was sheltering al-Qaeda, NATO invoked Article 5 for the first time in its history, and there was overwhelming international support for military action against those responsible.

But Iraq, well, that is another matter entirely.

That invasion reflected the worldview of George W. Bush and many of the advisers surrounding him. Several of them had advocated removing Saddam Hussein long before September 11. It also required a culture of lying which, frankly, sits more naturally with a Republican administration. Even putting aside fake intel about weapons of mass destruction, Saddam simply had no connection to 9-11, yet an implied connection was key in their selling of this war.

Gore – much more of a stickler for facts – publicly opposed the invasion before it occurred, arguing that it diverted attention from al-Qaeda and risked creating precisely the instability it claimed it would eliminate. It is impossible to exclude every imaginable scenario in which a Gore administration eventually confronted Iraq, but it is extraordinarily difficult to construct a realistic path leading to the 2003 invasion as it actually happened.

That single difference alters an astonishing amount of subsequent history.

The Iraq War consumed trillions of dollars, claimed hundreds of thousands of lives, strained alliances, and inflicted lasting damage on American credibility. The “de-Baathification” process, which removed anyone who served the regime, was plainly a mistake that left chaos in its wake; that requires a GOP-level indifference to expert counsel – sort of like the party’s position with climate denial, vaccine science, trickle-down economics and many other issues.

By destroying Saddam Hussein’s regime, it also removed Iran’s principal regional rival and unintentionally expanded Tehran’s influence across the Middle East. The collapse of the Iraqi state, the insurgency that followed, and the conditions from which ISIS eventually emerged all trace part of their origins to that decision. The insane level of regional tensions confronting the United States today – with a maximally hubristic Iran at the center – are difficult to understand without Iraq.

The consequences extended far beyond foreign policy. Iraq profoundly damaged public confidence in our government. Intelligence agencies, military intervention, foreign-policy expertise, and the judgment of political leaders all became objects of deep public skepticism. The belief that America’s governing class had made a catastrophic mistake became one of the defining political facts of the early twenty-first century.

Some of the horrific and illegal outgrowths of 9/11 - torture and its justifications, preventative war, rendition, the loss of privacy, the erosion of due process, the creation of a giant gulag in Guantanamo Bay, the placement of unqualified cronies in key government positions (heckuva job, Brownie!) - can be viewed as the seeds of today’s fully grown lawlessness we’ve seen under Donald Trump’s Defense Department, Justice Department, ICE, and more.

Alongside war and terrorism, climate change presents a different kind of counterfactual. Long before it became a central political issue, Gore had made global warming one of his defining causes. It is difficult to imagine a Gore administration withdrawing from the Kyoto Protocol, elevating fossil-fuel production as a central priority, or treating climate science with the skepticism that characterized much of the Bush years. At the very least, the United States would almost certainly have entered the twenty-first century with a markedly different posture toward what many now regard as its greatest long-term challenge.

If the worst predictions about climate change prove correct — rising seas swallowing coastal cities, vast regions becoming too hot for human habitation, hundreds of millions displaced by drought and famine, ecosystems collapsing, and geopolitical conflict intensifying over food and water – those humans left to clean up the mess will have the 2000 Court to thank.

All of that was the foreign policy. The domestic consequence is worse, and it’s still sitting on the bench.

Everything above is the part most people have at least half-heard. What follows is the part almost nobody connects back to a Tuesday in December.