Bush v. Gore

Bush v. Gore: The Question of Legitimacy

Copyright Date: 2002
Published by: Yale University Press
Pages: 256
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  • Book Info
    Bush v. Gore
    Book Description:

    The Supreme Court's intervention in the 2000 election will shape American law and democracy long after George W. Bush has left the White House. This vitally important book brings together a broad range of preeminent legal scholars who address the larger questions raised by the Supreme Court's actions. Did the Court's decision violate the rule of law? Did it inaugurate an era of super-politicized jurisprudence? How should Bush v. Gore change the terms of debate over the next round of Supreme Court appointments?The contributors-Bruce Ackerman, Jack Balkin, Guido Calabresi, Steven Calabresi, Owen Fiss, Charles Fried, Robert Post, Margaret Jane Radin, Jeffrey Rosen, Jed Rubenfeld, Cass Sunstein, Laurence Tribe, and Mark Tushnet-represent a broad political spectrum. Their reactions to the case are varied and surprising, filled with sparkling argument and spirited debate. This is a must-read book for thoughtful Americans everywhere.

    eISBN: 978-0-300-12700-3
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Introduction: The Question of Legitimacy
    (pp. vii-xiv)

    Talk of constitutional crisis conjures up some great disturbance in the larger society—revolution or war, economic depression or massive movement for social change. The mighty social forces unleashed by these events disrupt existing constitutional arrangements and threaten to overwhelm political and legal elites. The question, simply put, is whether existing leaders can channel these forces into constructive forms, or whether the Constitution will be fractured beyond recognition.

    But there is another kind of crisis—generated not by social pressure but by the machinery of government itself. Some part of the machine misfires, then another, then another. The general public...


    • 1 An Unreasonable Reaction to a Reasonable Decision
      (pp. 3-19)

      At the close of the polls on November 7, 2000, the presidential election was for all intents and purposes a tie. Everything depended on the outcome in Florida, where the first tabulation showed Governor Bush ahead by a few hundred of the six million votes cast there. The next day, as required by Florida law, the ballots were counted again and Bush was again the winner. Protests were lodged and a third count began. The Florida Supreme Court extended the lawful deadline in a decision that was later unanimously vacated by the Supreme Court of the United States (in Bush...

    • 2 Not as Bad as Plessy. Worse.
      (pp. 20-38)

      I swore never to write an essay like this one. Who is served by another demonstration thatBush v. Gorewas, as a legal matter, utterly indefensible? Those who agree do not need it. Those who disagree will not believe it.

      But the colloquy among the contributors to this book has persuaded me that something important aboutBush v. Gorehas still been missed—by its (many) critics and (few) supporters alike—something that can be uncovered only by going over, yet again, the illegality of the Supreme Court’s opinion.

      What has been missed is the feature ofBush v....

    • 3 eroG .v hsuB: Through the Looking Glass
      (pp. 39-66)

      Once upon a time, an aroused and active citizenry gathering political support for a favored cause or candidate didn’t seem terribly alarming to the Supreme Court. In 1986, when I represented a group of Berkeley activists agitating for rent control against landowners who felt threatened by that grass-roots ort, the Court, inFisherv.City of Berkeley,ruled 8–1 for my clients, rejecting the argument that such citizenbased action was preempted by the Sherman Act. But barely a decade later, the landscape had changed. InTimmonsv.Twin Cities Area New Party,I represented a minority political party challenging...

    • 4 In Partial (but not Partisan) Praise of Principle
      (pp. 67-83)

      Is the Supreme Court’s opinion inBushv.Goredifferent from the mass of controversial decisions that courts issue, and if it is, can it nonetheless be justified? These are questions I have asked myself many times since the Court spoke. My answers are: yes, it is unusual though not unique in its total lack of what can be called “principle,” and no, I don’t think it can be justified. In reaching these conclusions I have no interest in casting aspersions on individual justices or on their motives, and will not do so. My object is simply to discuss the...

    • 5 The Fallibility of Reason
      (pp. 84-95)

      Adjudication is the process through which ideals embodied in authoritative legal texts are elaborated and concretized. It requires the judge to listen to the presentation of facts and the law, to decide who has the best argument, and then to justify his decision. In this endeavor, the judge is not free to rely on any reason. He cannot invoke some reasons that might be wholly acceptable to legislators—for example, party loyalty—but instead is limited by a set of rules imposed on him by the professional community to which he belongs. The reason of the judge is thus constrained,...

    • 6 Sustaining the Premise of Legality: Learning to Live with Bush v. Gore
      (pp. 96-109)

      Bushv.Goreunfolded with the inevitability of a Greek tragedy. At every step, the Court could have decided otherwise. It could have refused the case, or sidestepped substantive issues by embracing the political question doctrine, or declined to stay the recount. But character was fate, and the Court seemed determined to embrace its destiny as the first tribunal to select a United States president.

      The Court enacted its performance in the full glare of public attention. Supreme Court decisions normally involve obscure facts and personae; they limp along for years, complex and intractable, incapable of definitive resolution. In contrast,...

    • 7 Can the Rule of Law Survive Bush v. Gore?
      (pp. 110-126)

      These days you often hear proponents of international trade talk about the rule of law. They mean we should persuade or force other countries to promulgate and enforce legal rules of property and contract. They are talking about Russia or China, not the United States. They are worried about a Kafkaesque picture. Market exchange won’t work when people do not know what entitlements will be respected as theirs, so that they can trade them. Market exchange won’t work when no rules exist (or will be enforced) against theft and fraud; when contracts change after you sign them; when your trading...


    • 8 A Political Question
      (pp. 129-144)

      To a startling degree, both state and federal judges played a decisive part in resolving the recent presidential election controversy. The United States prides itself on being the world’s oldest democracy. We fought two world wars and one cold war in the past century to make sure, in Lincoln’s words, that “Government of the people, by the people, and for the people would not perish from the earth.” Yet, in the 2000 presidential election, we the American people were content to let unelected state and federal judges decide who should hold the most powerful office in our federal government. How...

    • 9 Political Questions and the Hazards of Pragmatism
      (pp. 145-162)

      The most striking aspect ofBushv.Goreis how politically polarizing it is. Many Supreme Court decisions are controversial, butBushv.Gorehas a unique ability to unbalance the judgment and inflame the partisanship of everyone who confronts it. During the case and afterward, justices and commentators didn’t merely disagree; they impugned each others’ motives, accusing each other of allowing their legal judgment to be distorted by their partisan allegiances. And although members of both camps insisted their motives were pure, reaction to the decision divided along predictably partisan lines. With a few notable exceptions in this book,...

    • 10 The Conservatism in Bush v. Gore
      (pp. 163-176)

      Journalists find it easy to say that a Supreme Court decision is “conservative” or “liberal.” When the Supreme Court divides narrowly over whether the Constitution allows Congress to make states pay damages to employees who were fired because they were thought to be too old for the job, people write of the Court’s “conservative majority” and “liberal dissenters.” These characterizations are not simply descriptions; they also attribute cause: the majority ruled as it didbecauseits members are conservatives, and similarly for the dissenters.

      Political scientists have developed a formal model for what they think happens on the Supreme Court....

    • 11 Does the Constitution Enact the Republican Party Platform? Beyond Bush v. Gore
      (pp. 177-191)

      Bushv.Gorehas already become a case for the history books. Of course the decision amounts to a black eye for an extraordinary institution. The essentially lawless character of the Court’s decision ought not to be forgotten.¹ At the same time, there is a looming risk. The risk is that some independents and Democrats, in the academy and elsewhere, will be too focused on the Court’s decision—that they will seem, and be, sore losers, defining too much of their agenda in reaction to Election 2000 and assessing political life in large part by reference to the Court’s decision...

    • 12 Off Balance
      (pp. 192-209)

      We are in the fourth phase of the Republican Revolution. The first began with Newt Gingrich’s victory of 1994. The Contract with America expressed the ambition, shared by every generation in our history, to rewrite the terms of the social contract between the People and their Government. Gingrich’s government shutdown provided a wonderful way of dramatizing the aspirations of the rising movement: let’s go cold turkey on the nanny state inherited from FDR and LBJ, and the American people will hardly notice; or if they do, they will jubilate in their new-found market freedom.

      The moment bore comparison with Martin...

    • 13 Legitimacy and the 2000 Election
      (pp. 210-228)

      On December 12, 2000, the Supreme Court of the United States illegally stopped the presidential election and handed the presidency to George W. Bush.¹ Much of the anger about the 2000 election has been directed at the five conservatives on the Supreme Court. But it is important to remember that the Supreme Court would not have had the opportunity to intervene if there had not already been an equally serious problem of legitimacy on election day—massive black disenfranchisement in the crucial state of Florida. There is already enough evidence to suggest that Florida state officials violated the Federal Voting...

  6. Contributors
    (pp. 229-230)
  7. Index
    (pp. 231-240)