Justice Ginsburg's Dissent in Bush v. Gore

Abstract

In this essay, I examine Justice Ginsburg's dissenting opinion in Bush v. Gore, the decision that ended the 2000 controversy over the winner of the presidency. I look critically at Justice Ginsburg's invocation of federalism-based deference to the Florida courts' interpretations of state election law in the recount controversy. I consider also Justice Ginsburg's criticisms of the Court's remedial decision to stop the recounts. Finally, I take up the much-debated question of how to understand Justice Ginsburg's final two words: "I dissent," rather than "I respectfully dissent." My conclusion is that the omission of "respectfully" is pointed, but not for the simple reasons usually given. More significant, I think, is her decision not to point to possible future positive consequences of a decision from which she dissents – a strategy she often has followed in other cases, even ones in which her disagreement with the Court is deep.