A long with the suffering, death, and widespread fear engendered by the tragic events of September 11, 2001, the terrorist attacks and the subsequent war on terrorism gave an indisputable political advantage to the seven-month-old administration of President George W. Bush. It took the wind out of a storm of criticism claiming that the man who occupied 1600 Pennsylvania Avenue was not the man the American people had elected to their highest office. Americans naturally rally around their commander-in-chief when their country is under attack. That rallying reinforced Bush’s position as leader and brushed from the front pages things unrelated...

In his opening statement before a Senate Judiciary Committee that ultimately rejected his nomination to the U.S. Supreme Court, Judge Robert H. Bork nonetheless demonstrated his sensitivity to the constraints on judicial motives in our American political system when he stated: “The judge’s authority derives entirely from the fact that he is applying the law and not his personal values. That is why the American public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority of the electors voted for.”¹ Indeed, the values reflected in Bork’s statement underlie the complaints against theBush v....

The 2000 presidential election pitted Democrat Vice President Al Gore against Republican Governor George W. Bush, with third-party runs by Ralph Nader on the left and Patrick Buchanan on the right. In one of the closest presidential elections in history, Bush won the Electoral College and the presidency with 271 electoral votes to Gore’s 266, while Gore won the popular vote by more than half a million votes. The election came down to a battle over Florida’s 25 electoral votes, which turned on a final 537-vote lead for Bush out of almost 6 million votes cast.¹

Election 2000’s roller coaster...

Following the stay order of December 9, 2000, the U.S. Supreme Court heard oral arguments on December 11 and handed down its final decision at 10:00 P.M. on December 12, two hours before the end of the safe harbor period for states to submit their vote totals and ensure that no challenges would be made when Congress convened to tally the electoral votes officially on January 6, 2001. Television reporters standing in front of the darkened Supreme Court building struggled to make sense of the text of the decision distributed by the clerk.¹ CNN’s Jeff Greenfield remembered an old law...

Four separate dissents were written by the most liberal justices on the Court, one each by Justices Stevens, Souter, Breyer, and Ginsburg. Each dissent was joined by all dissenters in whole or in part, with the exception of Justice Stevens’s scathing dissent, which Justice Souter refused to join. As a whole, these dissents focused much more attention on the concurring opinion of Chief Justice Rehnquist than on the majority opinion, suggesting that the quick turnaround for this decision may have left the question of which opinion would win a majority in the air until the last moment.

The focus here...

If the U.S. Supreme Court’s power ultimately rests upon the American public’s perception of its authority, then that public is a critical audience of the Supreme Court’s decisions. However, legal discourse is rarely adapted for a lay audience. Although the average American may have a gut sense of what is fair and unfair in a given case, he or she can hardly be expected to fathom the legal nuances of theBushCourt’s equal protection holding or Rehnquist’s Article II argument. The American people rely on an intermediary—the news media—to explain what the Court was doing and why...

If reporters had to rely largely on the grammatical implications of their constructions and quotations from others to portrayBush v. Goreas a dramatic and controversial decision, editorialists were not so limited. They were much more explicit in their constructions of what was done, who did it, how they did it, and why. They did not merely leave grammatical implications to their readers but drew the connections explicitly to condemn or defend the majority justices.

While editorials argue and take sides, they typically do not rely heavily on elaborate considerations of the evidence. Newspapers and magazines rarely provide sufficient...

Scholars constructing motives have two key advantages over journalists and editorialists: space and time. Books and scholarly journals provide space for arguments to be elaborated, evidence to be adduced, and sources to be enumerated. And, unlike journalists and editorialists, who normally face deadlines, scholars typically have considerable leisure to ponder, research, write, and revise their rhetorical constructions. They also benefit from a better-educated audience, especially those knowledgeable in the law.

This enviable space and time provide an opportunity for scholars to scrutinize the work of judges, which they frequently do, deploying the same basic tools for reconstructing motives that we...

The per curiam decision inBush v. Gorewas criticized by scholars primarily for its misuse of agency, or how the Court reached its decision. Five issues received the most attention as scholars considered how the majority reached its decision: justiciability, equal protection, the safe harbor deadline, the remedy, and the limitation of the precedential value of the case. These issues involve agency in the sense that they are concerned with following the law (or failing to do so), which grounds judicial action in the ultimate ratio, agency-act, which suggests that acts ought to follow the law, adhere to it,...

Although agency is central to judicial argument, it is closely connected to, or at least readily implies, purpose . Means are to be related to ends; we adapt particular means to reach particular ends. We may emphasize those ends to suggest that purpose determines means, whereby we seek particular ends and find the means to reach them. Or we may derive purposes from agencies, whereby purposes are inherent in, implied by, or a consequence of the agencies we use.

The heavy reliance of legal opinions on precedents tends to embed purposes within agencies. In a case involving some truly novel...

The agents in theBush v. Gorecase were the High Court, the majority and dissent, and individual justices. We typically assume that particular kinds of agents have particular kinds of purposes, or that those with particular purposes ought to be seen as particular kind of agents. We characterize the agent who seeks justice differently from the agent who seeks political advantage, for example. We also define agents by the way they group themselves (e.g., into majority ranks or dissenter ranks) or the way they may be grouped by others (e.g., as conservatives or liberals). We draw on actions, agencies,...

Scene and act together constitute one of the most frequently used ratios of motives in our science-dominated society. Scene, it is often suggested, contains the act. Thus, socially unacceptable behaviors are often said to be the product of errant chemicals in our brains, such as neurotransmitters. Those chemicals become the material scene that explains actions; changing those chemicals—with antidepressant drugs, Ritalin, or other medicines—changes the neurochemical scene of our actions, “correcting” the “problem.”

We invoke scene-act explanations in unscientific accounts of motives as well. Following the attack on the World Trade Center on September 11, 2001, there were...

Several scholars defending the Court’s decision to stop the recounts thought that the concurring opinion by Chief Justice Rehnquist offered a better justification for the decision than the per curiam.¹

Rehnquist’s concurring opinion, joined by Justices Thomas and Scalia, argued for intervention by the High Court by distinguishing an “ordinary election” from the election of the president of the United States, urging that the federal issues it raised justified an otherwise extraordinary intervention over issues of state law. Rehnquist examined the language of Article II and highlighted the legislature’s role in the electoral process, quoting with emphasis: “‘[e]ach State shall...

Judicial motives are constructed within a discursive field with enough rhetorical play in the structure of the grammar of motives for coherent stories to be developed by those who would attack or defend a particular court’s actions. However, owing to the interrelatedness of the grammatical terms and of one set of acts with other sets of acts, there are limits to what can be convincingly constructed.

The flexibility in such constructions allowed the news media, editorialists, scholars, and justices to make prima facie cases for their versions of the High Court’s motives in service of their own rhetorical purposes. Members...