From Bush v. Gore to NAMUDNO: A Response to Professor Amar

10 Pages Posted: 27 Aug 2009 Last revised: 25 Sep 2009

Ellen D. Katz

University of Michigan Law School

Date Written: August 26, 2009

Abstract

In his Dunwoody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, the Supreme Court’s decision last June in Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO). Among its many surprises, NAMUDNO helps illuminate the Court’s fundamental error nine years ago.

Professor Amar forcefully argues that the mistrust with which the Justices in the Bush v. Gore majority viewed the Florida Supreme Court was both unjustified and disastrously consequential. What NAMUDNO helps us see is that such mistrust, be it mistaken or warranted, need not be incompatible with a sound judicial response. NAMUDNO shows that the Court’s most profound error in Bush v. Gore was not the premise from which the Justices began, though flawed it may have been, but rather where they went from there.

Keywords: Bush v. Gore, NAMUDNO, statutory interpretation

JEL Classification: K30, K39

Suggested Citation

Katz, Ellen D., From Bush v. Gore to NAMUDNO: A Response to Professor Amar (August 26, 2009). Florida Law Review, Forthcoming; U of Michigan Public Law Working Paper No. 161. Available at SSRN: https://ssrn.com/abstract=1462068

Ellen Katz (Contact Author)

University of Michigan Law School ( email )

625 South State Street
LR 960
Ann Arbor, MI 48109-1215
United States
734-647-6241 (Phone)

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