Bush v. Gore: The Question of Legitimacy by Professor Bruce Ackerman, Bruce Ackerman

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By Professor Bruce Ackerman, Bruce Ackerman

The perfect Court's intervention within the 2000 election will form American legislations and democracy lengthy after George W. Bush has left the White apartment. This extremely important booklet brings jointly a wide diversity of preeminent felony students who tackle the bigger questions raised via the excellent Court's activities. Did the Court's selection violate the rule of thumb of legislations? Did it inaugurate an period of super-politicized jurisprudence? How may still Bush v. Gore swap the phrases of discussion over the subsequent around of ideal courtroom appointments? The contributors-Bruce Ackerman, Jack Balkin, Guido Calabresi, Steven Calabresi, Owen Fiss, Charles Fried, Robert submit, Margaret Jane Radin, Jeffrey Rosen, Jed Rubenfeld, Cass Sunstein, Laurence Tribe, and Mark Tushnet-represent a vast political spectrum. Their reactions to the case are various and fabulous, jam-packed with gleaming argument and lively debate. it is a must-read e-book for considerate american citizens in all places.

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S. 780 (1983). n o t a s b a d a s p l e s s y , w o r s e . 29 But there was a strong, four-justice dissent in the case. The dissent essentially argued that exacting constitutional scrutiny of Ohio’s electoral processes was improper because state law governs elections, even presidential elections. ’’ Who wrote this rational-basis dissent? William Rehnquist. Who joined it? Sandra Day O’Connor. Given the extreme closeness of the election in Florida and the significant evidence of machine failure, the Florida Supreme Court’s statewide manual recount was almost certainly legitimate under a mere-rationality test.

Whether there was simmering public discontent with the decision, or instead widespread indi√erence, is another matter. I suspect indi√erence. One reason is that the public does not expect Supreme Court decisions to be free from deep political or ideological divisions. After all, if the Supreme Court made up the December 12 deadline in Bush v. Gore, didn’t the Court equally ‘‘make up’’ the right of privacy announced in Roe v. Wade? A number of commentators have endorsed the idea that Bush v. Gore, if legally indefensible, is no more indefensible than a case like Roe.

Gore, however, is not about constitutional principle. When the Bush v. Gore majority made up a December 12 state law deadline, they were not announcing a fundamental principle or freedom or anything else in which anybody passionately believed. Correct me if I’m wrong, but I haven’t heard any Bush supporters marching in the street proclaiming the right of state supreme courts to make December 12 the deadline for resolving election contests. This is why Bush v. Gore di√ers profoundly from cases like Roe or Plessy.

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