Politics, Ideology, and the Academic Assault on Bush v. Gore

Abstract

In this article, Professor Pushaw reviews, “Bush v. Gore: The Question of Legitimacy” edited by Bruce Ackerman, a book of essays regarding the Supreme Court’s Bush v. Gore decision. In that case, five Justices (Rehnquist, O'Connor, Kennedy, Scalia, and Thomas) concluded that (1) the Court had to exercise jurisdiction; (2) the Florida Supreme Court had violated the Equal Protection Clause by ordering certain disputed presidential election ballots to be recounted based upon a standardless search for the “intent of the voter” (a holding joined by Justices Souter and Breyer); and (3) a remand to the Florida judiciary to proceed under uniform legal rules would be futile because a recount could not be completed in a timely manner. Except for Professor Fried, every contributor to Ackerman’s book contends that the Court's legal analysis was plainly incorrect. Many of them go further and condemn Bush v. Gore as illegitimate-so far beyond the pale of regular constitutional decisionmaking that it can be explained only as the imposition of partisan Republican politics.

Professor Pushaw summarizes this commentary and suggests that the critics themselves may be motivated by their political ideology, as shown in their attacks on the three main parts of the Bush opinion. Pushaw then argues that the debate over Bush mirrors the general inability of both liberal Democrats and conservative Republicans to transcend their personal preferences in analyzing constitutional law, and he recommends that we emulate those few judges and scholars who have demonstrated political neutrality. The only example in Ackerman’s book is Steven Calabresi, a Bush adviser who nonetheless concludes that the Court erred in intervening because the Constitution entrusts presidential election disputes to designated political officials. In Professor Pushaw’s view, such politically unbiased assessment is necessary to restore the idea that the Constitution is truly “law.”

Keywords: Bruce Ackerman, Book Review, Bush, Gore, Supreme Court, Presidential Election, Equal Protection, Politics, Republicans, Democrats

JEL Classification: K49