Dahlia Lithwick and I have written this piece for Slate. It begins:
Nobody, aside perhaps from Judge Amy Coney Barrett, could have missed the implication of Sen. Amy Klobuchar’s line of questions Wednesday about Barrett’s service in the army of GOP lawyers who flew down to Florida to make certain that ballots were counted for George W. Bush in the 2000 election dispute that culminated in Bush v. Gore. If Barrett is confirmed, the Supreme Court will have three justices who worked on behalf of the GOP on the 2000 litigation that resulted in George W. Bush winning that year’s presidential election. Barrett, who testified that she couldn’t recall anymore what work she did for the campaign, joins Chief Justice John Roberts and Justice Brett Kavanaugh as three of the luckiest election lawyers in history, a fact Barrett dismissed in her testimony as an unremarkable coincidence.
It’s not just that court will now feature three former Bush v. Gore lawyers—it’s that it will feature three former *Bush* lawyers. But this isn’t just a story about how the Federalist Society rewards its own loyalists. It’s also an urgent story about a side project of Federalist Society leaders and allies working to assist an effort at voter suppression, while simultaneously working both to manipulate voting rules and stack the judiciary to push a Trump victory and solidify Republican control of government….
This is where it all ties together: the lawyers who are popping up around the country demanding, under the false flag of “vote fraud,” that voter rolls be purged and voting in a pandemic become more deadly, are coordinated by the same people, and with the same unknown funding that has put more than 200 conservatives judges into lifetime positions on the federal courts. As we concluded in May, all this is a far cry from the “debate club” the Federalist Society has long claimed to be (and still claimed to be at the Barrett hearings)…
There’s one more way in which the ghost of Bush v Gore, the long shadow of the Brooks Brothers revolt, and the specter of outright vote suppression loom large over the upcoming election and whatever litigation may follow. The unsigned 5–4 decision in Bush v. Gore was widely understood to be a “good for one ride only” holding that would have no precedential force in any future case. (The Supreme Court itself has never cited the case in the intervening decades except in a concurring opinion by Justice Clarence Thomas on a tangential point.)
But the cherry on top is that it’s now being dusted off by Trump’s legal team for a reprise in the 2020 election. As Joan Biskupic has explained, Trump’s legal teams have begun to cite the equal protection rationale that supported Bush v. Gore in legal challenges around the country, somehow claiming that the case, which was supposed to have no value, now invalidates state procedures for balloting by mail, because they lack in uniformity in violation of constitutional equal protection. Justice Antonin Scalia signed onto that equal protection decision holding his nose, reportedly calling it, “as we say in Brooklyn, a piece of shit.”