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The Liberal Legacy of Bush v. Gore

TL;DR: For example, the authors examines the last ten years of the Rehnquist Court, which was divided evenly by the Court's highly controversial intervention in the 2000 presidential election, Bush v. Gore, and argues that the Court shifted noticeably to the left, particularly in high-profile cases, after the decision.
Abstract: This article examines the last ten years of the Rehnquist Court, which was divided evenly by the Court's highly controversial intervention in the 2000 presidential election, Bush v. Gore. I compare the Court's record before and after that decision both qualitatively and quantitatively, and argue that the Court shifted noticeably to the left, particularly in high-profile cases, after Bush v. Gore, as conservative Justices showed a greater willingness to side with their liberal colleagues to reach liberal results. I hypothesize that this may have reflected an effort, conscious or subconscious, to restore the Court's legitimacy by counteracting images of a partisan body divided along political lines. I also suggest that the same interest in restoring the legitimacy of the Court may have contributed to the Court's substantive emphasis on the values of the rule of law, which was particularly evident in the Court's enemy combatant decisions of 2004 (and for that matter, more recently, in the Court's decision on military tribunals in Hamdan v. Rumsfeld). This "liberal legacy" of Bush v. Gore illustrates one of the checking functions on judicial supremacy - namely the need to maintain the appearance (and reality) that law is distinct from politics. Whether the "Bush v. Gore effect" will continue with the Roberts Court remains to be seen.

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Citations
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Journal Article•DOI•
Mary Anne Case1•
TL;DR: For better or for worse, the equal protection holding in the case of "Bush v Gore" is "reconcilable with the general jurisprudential commitments of the Justices" as mentioned in this paper.
Abstract: In this Essay, I am going to try to do what many distinguished legal scholars have said cannot and should not be done. I am going to take the equal protection holding in Bush v Gore' seriously. My project is loosely akin to intellectual history: I hope to show that much in the Court's opinion is indeed \"reconcilable with the general jurisprudential commitments of the Justices,\"' for better or for worse. This seems an appropriate enterprise for a second generation of scholarship on the decision, after some of the shouting has died down. Although most of the first generation of scholarly works that addressed the subject stressed how out of tune the decision was with the commitments of the justices who made it, a few identified increasingly familiar leitmotifs.' Among those I, too, shall stress

1 citations

Journal Article•DOI•
Nelson Lund1•
TL;DR: Tribe's latest theory is entirely novel, and the Court committed no error in failing to think it up before he did as mentioned in this paper, and Professor Tribe is wrong: Bush v. Gore was indeed justiciable under the applicable precedents.
Abstract: Professor Tribe has now done to me just what I claim he did to the Supreme Court in eroG v. hsuB. By repeatedly distorting what I actually said, Unbearable Wrongness creates illusory targets that Professor Tribe then holds up to ridicule. Leaving aside his many mischaracterizations of what I said, and the many arguments that he left unanswered in his extremely lengthy rebuttal, I focus here on our most significant points of disagreement: whether the Court's rationale for the decision in Bush v. Gore suffers from an almost embarrassing bankruptcy, and whether the Court was legally prohibited from deciding the case at all.These are the important issues, and it is important to keep in mind that Professor Tribe's attacks on me are significant only because he desperately needs to show that any legal defense of the Court is silly. That is the only way to sustain his own claim that the Court was playing a shell game in Bush v. Gore, or as he now says, that the Court's decision deserves to be greeted with head-scratching incredulity. Professor Tribe's claim is not just that Bush v. Gore was wrongly decided, but rather that no reasonable person could defend the decision. That is an extraordinarily serious accusation against the Court, and I say that the accusation is itself outrageous.On the equal protection issue, Professor Tribe mischaracterizes the applicable precedents (especially by inventing a non-existent requirement of intentional discrimination in fundamental rights cases), misstates the holding in Bush v. Gore (especially by imputing to the Court a demand that the rules for recounting ballots must be precisely drawn and completely uniform), and falsely accuses the Court of having forbidden the Florida court to attempt a constitutionally permissible recount on remand.On justiciability, Professor Tribe has to my great satisfaction completely withdrawn the arguments that I called spectacularly indefensible. Unfortunately, he has not returned to the position that he took as a litigator in Bush v. Gore, where he implicitly treated the case as justiciable. Instead, Professor Tribe has now invented yet a third theory, which conflates the legal doctrine of justiciability with the prudential considerations advanced by Justices Souter and Breyer (neither of whom claimed that Bush v. Gore was nonjusticiable). Professor Tribe's latest theory is entirely novel, and the Court committed no error in failing to think it up before he did. All nine Justices were right and Professor Tribe is wrong: Bush v. Gore was indeed justiciable under the applicable precedents.

1 citations

References
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Journal Article•DOI•
Pamela S. Karlan1•
TL;DR: In this paper, the authors argue that the Shaw cases reflect a ''structural? notion of equal protection, in which the clause is detached from the protection of any identifiable injury to a particular individual and is instead used to regulate the political process itself''.
Abstract: This article is a response to a piece by Robinson Everett, principal lawyer for the plaintiffs in a series of challenges to North Carolina?s post-1990 congressional redistricting collectively referred to as the Shaw cases. In it, I argue that the Shaw cases reflect a ?structural? notion of equal protection, in which the clause is detached from the protection of any identifiable injury to a particular individual and is instead used to regulate the political process itself. In particular, I focus on the concept of standing to show how incongruous the Shaw cases are. I then argue that Bush v. Gore is also a structural equal protection case. It raised quite similar issues of standing, remedies, judicial respect for the states and the political branches, and the frame within which to assess equal protection claims. In particular, using the resources of the Stanford Law Library's Election 2000 website, which contains virtually all the legal documents filed in the Florida recount cases, I show that Bush v. Gore raises serious questions of standing with respect to the equal protection clause claim with which the Supreme Court ultimately disposed of the case.

5 citations

Book Chapter•DOI•
Nelson Lund1•
TL;DR: In the case of the Florida recount, the U.S. Supreme Court properly accepted the Florida court's interpretation of state law and provided that court with an opportunity to reconsider its own interpretation as mentioned in this paper.
Abstract: Bush v. Gore was a straightforward and legally correct decision. For more than a quarter century, the Supreme Court has treated the stuffing of ballot boxes as a paradigmatic violation of the Equal Protection Clause. Much more subtle and indirect forms of vote dilution have also been outlawed. Like some of those practices, the selective and partial recount ordered by the Florida Supreme Court may have been an inadvertent form of vote dilution. But that recount had effects that were virtually indistinguishable from those in the paradigmatic case. There is no meaningful difference between adding illegal votes to the count and selectively adding legal votes, which is what the Florida court was doing. The Supreme Court rightly concluded that the vote dilution in this case violated well-established equal protection principles. Nor did the Supreme Court err in its response to this constitutional violation. Although the Court acted with unprecedented dispatch after the Florida court's December 8, 2000 decision, it was highly improbable that a legally proper recount could be conducted by the December 18 deadline set by federal law. And it was quite impossible for such a recount to meet the December 12 deadline that the Florida court itself had found in Florida law. Contrary to a widespread misconception, the U.S. Supreme Court properly accepted the Florida court's interpretation of state law and provided that court with an opportunity to reconsider its own interpretation of state law. When the clock ran out, it was entirely due to mistakes and delays attributable to the Florida court. The Supreme Court's majority opinion has been subjected to a barrage of political criticisms of a kind that might more fittingly be directed against a Senate Majority Leader or a Secretary of State. Ironically, it is precisely because the Justices correctly applied the law that they have been accused of having partisan motives.

5 citations