Supreme Court Justice Ruth Bader Ginsburg, who was among the dissenters in a 5 to 4 decision in favor of George W. Bush, offered the case as an example of "how important -- and difficult -- it is for judges to do what is legally right, no matter what 'the home crowd' wants."
Ginsburg, discussing judicial independence at the University of Melbourne Law School in Australia on Thursday, said she would "not venture any dire or definitive declarations about the implications of Bush v. Gore" for the perceived impartiality of the American judiciary.
Such an assessment "awaits history's judgment," she said, according to a text of the speech released by the court yesterday.
There was thus no explicit repeat of her stinging dissenting opinion, or the opinion by Justice John Paul Stevens, which Ginsburg joined and which accused the majority -- a five-member conservative bloc of Republican-appointed justices -- of lending "credence to the most cynical appraisal of the work of judges throughout the land."
Lawyers who have had contact with Ginsburg, who was appointed by President Bill Clinton, recently describe her as displaying even more unhappiness with the decision in private.
Still, Ginsburg's speech contained at least indirect hints as to what the justice, one of the court's most liberal members, thinks history's judgment might be.
Reviewing politically contentious Supreme Court cases of the recent past, she noted approvingly that justices appointed by President Richard M. Nixon had ruled against him in the 1974 Watergate tapes case, precipitating Nixon's resignation, and that two appointees of President Harry S. Truman had tipped the balance against him in the 1952 "steel seizure case."
She made no analogous comment about the Bush v. Gore majority, remarking instead that two of the dissenters, Stevens and David H. Souter, were appointed by Republicans and could be considered to have crossed what she called "party lines."
Her use of the "home crowd" phrase also seemed pointed. It was borrowed from a 1980 lecture by Chief Justice William H. Rehnquist, a leading court conservative whom Ginsburg singled out for criticism in her Bush v. Gore dissent.
Ginsburg praised the court's decision to avoid ruling in Bush v. Palm Beach County, the election case that preceded it, as a "measured response" that showed "restraint."
In another part of her speech, Ginsburg chided members of Congress for exerting what she called undue political pressure on the federal courts and for "political hazing" of judicial nominees. Most of her examples were drawn from recent efforts by conservatives to block Clinton appointees.
She singled out a short-lived 1997 campaign by House Majority Whip Tom DeLay (R-Tex.) for more impeachments of federal judges, referring to him as "Mr. DeLay, who is not a lawyer, but, I'm told, an exterminator by profession."