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The Liberal Legacy of Bush v. Gore

David Cole

Georgetown University Law Center

Georgetown Law Journal, Forthcoming
Georgetown Public Law Research Paper No. 920506

This article examines the last ten years of the Rehnquist Court, which was divided evenly by the Court's highly controversial intervention in the 2000 presidential election, Bush v. Gore. I compare the Court's record before and after that decision both qualitatively and quantitatively, and argue that the Court shifted noticeably to the left, particularly in high-profile cases, after Bush v. Gore, as conservative Justices showed a greater willingness to side with their liberal colleagues to reach liberal results. I hypothesize that this may have reflected an effort, conscious or subconscious, to restore the Court's legitimacy by counteracting images of a partisan body divided along political lines. I also suggest that the same interest in restoring the legitimacy of the Court may have contributed to the Court's substantive emphasis on the values of the rule of law, which was particularly evident in the Court's enemy combatant decisions of 2004 (and for that matter, more recently, in the Court's decision on military tribunals in Hamdan v. Rumsfeld). This "liberal legacy" of Bush v. Gore illustrates one of the checking functions on judicial supremacy - namely the need to maintain the appearance (and reality) that law is distinct from politics. Whether the "Bush v. Gore effect" will continue with the Roberts Court remains to be seen.

Number of Pages in PDF File: 48

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Date posted: July 25, 2006  

Suggested Citation

Cole, David, The Liberal Legacy of Bush v. Gore. Georgetown Law Journal, Forthcoming; Georgetown Public Law Research Paper No. 920506. Available at SSRN: http://ssrn.com/abstract=920506

Contact Information

David D. Cole (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9078 (Phone)
202-662-9408 (Fax)
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