29 Pages Posted: 29 Jul 2003 Last revised: 21 Feb 2008
A lengthy Harvard Law Review essay by Laurence H. Tribe - eroG v. hsuB and its Disguises: Freeing Bush v. Gore from its Hall of Mirrors - reaches the following conclusion about the Court's holding in that case: EQUAL PROTECTION, MY ASS! Notwithstanding Professor Tribe's vulgar expression of contempt for the Court, his essay is extremely sophisticated, and it deserves to be read carefully.
Much of Professor Tribe's essay is taken up with peripheral discussions, the daunting volume and dazzling intricacy of which serve primarily to distract the reader's eye from the absence of any solid arguments that can support his two principal conclusions about the decision in Bush v. Gore. Those two conclusions can be stated very simply: the Court's equal protection ruling was untenable as a matter of law, and the case in any event was technically nonjusticiable. On the basis of these conclusions, Professor Tribe renders this further verdict: the five Justices in the Bush v. Gore majority have little but disdain for Congress as a serious partner in the constitutional enterprise, and not much patience with 'We the People' as the ultimate source of sovereignty in this republic.
It is Professor Tribe's accusations that are genuinely untenable, and he is forced to rely entirely on sleights of hand in order to make them look like the results of a detached and sober analysis. This article explains why a large majority of the Supreme Court (7 out of 9) and a near majority of the Florida court (3 out of 7) have no reason at all to be embarrassed by their conclusion that equal protection was violated by the Florida court, and why Professor Tribe's arguments about justiciability are spectacularly indefensible.
Keywords: equal protection, Supreme Court, constitutional law, justiciability
Suggested Citation: Suggested Citation
Lund, Nelson, 'Equal Protection, My Ass!'? Bush V. Gore and Laurence Tribe's Hall of Mirrors. Constitutional Commentary, Vol. 19, No. 3, pp. 543-569, Winter 2002; George Mason Law & Economics Research Paper No. 03-32. Available at SSRN: https://ssrn.com/abstract=428164 or http://dx.doi.org/10.2139/ssrn.428164