The day after the Supreme Court's decision in Bush v. Gore, a colleague who specializes in tax law approached me with mock sympathy. "It must be very discouraging trying to teach constitutional law," he said, "when it's so obviously made up." This view of the Court's decision remains widely held, at least within the academy and among those who did not vote for President Bush. Unlike many of my fellow Democrats and academic colleagues, however, I see no reason to question the motives of the majority (or dissenting) Justices in Bush v. Gore. I certainly do not think that the case casts doubt upon the very possibility of principled constitutional adjudication. Nonetheless, I share the widespread view that the justifications the Court offered for its decision were quite unconvincing, and for that reason I have difficulty believing that the case will, as it were, have legs. Bush v. Gore is an important case because of the stakes of the controversy it resolved, not because of the legal principles it announced. By contrast, Samuel Issacharoff, Pamela Karlan, and Richard Pildes take the case seriously as a source of legal doctrine. They use it as the centerpiece of a legal primer on the difficulties surrounding after-the-fact judicial review of election procedures. In its fair and balanced exposition of prior precedent and the legislative history of the key provisions upon which the Supreme Court purported to rely in Bush v. Gore, When Elections Go Bad provides the Court with all the rope it needs to hang itself. Yet the book's very structure implies that Bush v. Gore reflects the dilemmas that generally and inevitably arise when courts are asked to adjudicate election disputes. It does not. Bush v. Gore is sui generis. Because of its remarkable role in deciding a remarkable election, however, the case is clearly worth studying closely, apart from any general lessons one might choose to draw from it. Although When Elections Go Bad presents the courts as struggling with recurring dilemmas, its real strength is the light it sheds on the performance of the U.S. Supreme Court in the Presidential election of 2000.
Michael C. Dorf,
The 2000 Presidential Election: Archetype or Exception?,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol99/iss6/4