A 'Tincture of Justice': Judge Posner's Failed Rehabilitation of Bush V. Gore

Posted: 2 Oct 2001 Last revised: 25 Jul 2013

See all articles by Richard L. Hasen

Richard L. Hasen

University of California, Irvine School of Law

Date Written: September 25, 2001


Those expecting Judge Richard A. Posner's new book, Breaking the Deadlock, The 2000 Election, the Constitution and the Courts (Princeton University Press 2001), to be a convincing defense of the Supreme Court's decision to end the recount of Florida votes for president in the 2000 election will be disappointed. The book is clearly written in Posner's usual conversational style and full of strong arguments on peripheral points related to the 2000 election. But liberals will come away unconvinced by Posner's admittedly result-oriented argument that the Court's decision was necessary to avert a crisis. Conservatives, while likely pleased that Posner has made a more straightforward case for the outcome in Bush v. Gore than the Court majority did itself, will find little comfort in Posner's result-oriented approach, which he tries to dress up as "pragmatism." Moreover, at many points, Posner's analysis reads more like a "critical legal studies" analysis of the case than the sober analysis of a conservative jurist. Nor will conservatives be particularly pleased by his approach to statutory interpretation and federalism issues. In the end, Posner's position on Bush v. Gore is "conservative" only in the sense that it favors the orderly transition of power over allowing a political decision to be made by accountable politicians. The review essay proceeds in two parts. Part I focuses on the most important part of Posner's book: his defense of the Supreme Court's decision in Bush v. Gore. Posner's analysis shows a cavalier attitude about the line between law and politics and little appreciation for when court intervention in politics is appropriate. Part II explores Posner's analysis of the Florida Supreme Court's decisions, contrasting Posner's solicitousness toward the U.S. Supreme Court's decision (if not its reasoning) with his disdain for the Florida high court's decisions. For Posner, law exists as something real when he can use it as a club to beat down the Florida court, but it is a convenient facade for the U.S. Supreme Court. Indeed, someone of different political stripes who applied Posner's result-oriented jurisprudence could find an equally strong justification for the Florida court decisions (if not their reasoning). The review concludes that if Posner's analysis remains the leading "conservative" defense of Bush v. Gore, liberals will have the better of the argument for some time to come. Nonetheless, Posner's approach reveals the dangers of result-oriented election law jurisprudence, advocated by both liberals and, now, conservatives.

Suggested Citation

Hasen, Richard L., A 'Tincture of Justice': Judge Posner's Failed Rehabilitation of Bush V. Gore (September 25, 2001). Loyola-LA, Public Law Research Paper No. 2001-15. Available at SSRN: https://ssrn.com/abstract=285191

Richard L. Hasen (Contact Author)

University of California, Irvine School of Law ( email )

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Irvine, CA 92697-1000
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949 824 0895 (Fax)

HOME PAGE: http://law.uci.edu/faculty/page1_r_hasen.html

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