Bush v. Gore: Looking at Baker v. Carr in a Conservative Mirror

Abstract

In Baker v. Carr, the Warren court perceived a crisis that defied a political solution. There the Court found justiciable a claim that the Equal Protection Clause required apportionment to be based solely on population, despite the dissenters’ arguments that (1) nothing in that Clause, or any other constitutional provision, authorized this result, and (2) the majority had abandoned the principles of judicial restraint embedded in the ideas of stare decisis, justiciability, and federalism. For the past four decades, the Court has steadfastly adhered to Baker, and although some legal scholars initially criticized Baker, today the opinion meets with near-universal acclaim.

Baker laid the groundwork for the Court’s opinion in Bush v. Gore. The Court decided Bush precisely the way it decided Baker. Once again, an electoral emergency arose that struck the majority as insoluble through normal political channels. Once again, over acrimonious dissents, the Court created an unprecedented equal protection “right” and ignored concerns for both federalism and justiciability.

Notwithstanding these similarities, law professors who have canonized Baker criticize Bush. In this article, Professor Pushaw argues that intellectual consistency requires either acceptance or rejection of both Baker and Bush. He concludes that both decisions rest on similarly faulty reasoning, and thus, both decisions are wrong.

Keywords: Baker v. Carr, Bush v. Gore, constititional law, political question, justiciability

JEL Classification: K40