Justice Ginsburg's Dissent in Bush v. Gore

15 Pages Posted: 8 Oct 2015

See all articles by Hugh W. Baxter

Hugh W. Baxter

affiliation not provided to SSRN

Date Written: 2009

Abstract

In this essay, I examine Justice Ginsburg's dissenting opinion in Bush v. Gore, the decision that ended the 2000 controversy over the winner of the presidency. I look critically at Justice Ginsburg's invocation of federalism-based deference to the Florida courts' interpretations of state election law in the recount controversy. I consider also Justice Ginsburg's criticisms of the Court's remedial decision to stop the recounts. Finally, I take up the much-debated question of how to understand Justice Ginsburg's final two words: "I dissent," rather than "I respectfully dissent." My conclusion is that the omission of "respectfully" is pointed, but not for the simple reasons usually given. More significant, I think, is her decision not to point to possible future positive consequences of a decision from which she dissents – a strategy she often has followed in other cases, even ones in which her disagreement with the Court is deep.

Suggested Citation

Baxter, Hugh W., Justice Ginsburg's Dissent in Bush v. Gore (2009). New England Law Review, Vol. 43, p. 711, 2009, Boston Univ. School of Law, Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=2669742

Hugh W. Baxter (Contact Author)

affiliation not provided to SSRN

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