The Odd Consequences of Taking Bush V. Gore Seriously

Abstract

In the short time since the November 2000 presidential election, it has become commonplace in both academic and popular forums to deride the Supreme Court's decisions in Bush v. Palm Beach County Canvassing Board and as - to put it bluntly - intellectually corrupt. The common theme of these attacks on the Court's abrupt resolution of the 2000 presidential election is that the decisions were crassly political efforts to decide the election on behalf of the party favored by the five Justices who formed the Bush v. Gore majority. There is ample justification for this derisive response, in light of the way in which the Court aggressively reached out to decide a case that was by most measures unripe for Supreme Court review, and also in light of the weak constitutional doctrines relied upon by the majority.