The Supreme Court, Bush v. Gore, and Rough Justice

TLDR: The case of George W. Bush v. Gore as discussed by the authors has been widely criticized for its lack of legal foundation, including equal protection, standing, political question, and remedy, and the lack of doctrinal foundation in the opinion is so transparent that even the case's few defenders tend to rest on the grounds offered by the concurrence rather than the majority.

Abstract: Bush v. Gore is not defensible doctrinally. The opinion is unsound on a number of grounds, including equal protection, standing, political question, and remedies. Indeed, the lack of doctrinal foundation in the opinion is so transparent that even the case's few defenders tend to rest on the grounds offered by the concurrence rather than the majority.Bush v. Gore also does not neatly fit within the Court's traditional approach to constitutional principles of federalism and separation of powers. The opinion gives little or no regard to the state court's construction of its own law and little or no deference to the constitutional provisions that delegate the resolution of electoral disputes of the type at issue in the case to the Congress and not to the courts.These doctrinal and theoretical weaknesses have led numerous observers to roundly condemn the opinion. These academic attacks, even if accurate, however, may fundamentally misconceive what the case was truly about. Bush v. Gore cannot be understood as about legal doctrine. Rather, it is a case that tests the limits of the Court's ability to go beyond traditional legal analysis to achieve what it deems to be a just result — a case that attempts to achieve what others have dubbed “rough justice.” Seen in this light, the fact that the Court did not follow traditional analysis in order to reach its decision is not, taken alone, fatal. Nor is it unprecedented. As this essays shows, the Supreme Court, prior to Bush v Gore, had decided cases with little or no reference to established legal principle in order to achieve “rough justice.” Indeed, in all likelihood, the Supreme Court will continue to exercise this power to act when circumstances so dictate.The question of whether Bush v. Gore was based on sound legal principle thus does not end the inquiry. Even if the decision was not doctrinally or theoretically sound, there remains the question of whether the Court nevertheless acted illegitimately. This inquiry may then be broken down into two sub-parts: 1) Was the Court justified in intervening in this case to attempt to achieve rough justice? 2) If intervention was appropriate, did the Court reach the right result?This essay addresses these issues. Part I of the paper discusses whether Supreme Court intervention to accomplish rough justice in this case was warranted. Part II of the paper then addresses the question of whether, if judicial intervention was appropriate, the Court exercised the power correctly in this case. As will subsequently become clear, I conclude that although the Court's intervention was indeed appropriate, it ultimately reached the wrong result in its decision.