Bush v. Gore Through the Lens of Constitutional History

Abstract

This Article considers the long-term implications of Bush v. Gore for the Court's institutional standing and legitimacy. First, the Article considers the possibility that the Court's legitimacy turns on the legal soundness of the reasoning of its opinions. If this is the case, I argue, the Court is in a lot of trouble, since few reputable lawyers will be convinced that the result was a product of anything but the conservative Justices' partisan preference for George W. Bush in the 2000 presidential election. Second, the Article considers the alternative (in my mind, more plausible) premise that history's verdict on a Supreme Court ruling depends more on whether public opinion ultimately supports the outcome than on the quality of the legal reasoning or the craftsmanship of the Court's opinion. The Article's strategy is to canvas some of the landmark decisions in American constitutional history ? Dred Scott v. Sandford, Brown v. Board of Education, Furman v. Georgia, Roe v. Wade, and others ? with the aim of deriving a list of factors that predict how particular rulings will affect the Court's reputation: the amount of opposition a decision generates, the intensity of opposition, perceptions of how efficacious a ruling is likely to be, the relative clout of constituencies supporting and opposing the decision, the continuing saliency of the issue adjudicated by the Court, shifts in public opinion regarding the issue resolved by the Court, the ability of the Justices to take advantage of subsequent opportunities to modulate their decision in light of hostile public opinion, and whether a particular decision is an isolated ruling or part of a package of controversial decisions. Finally, the Article considers how those variables apply to Bush v. Gore and predicts that the decision's long-term consequences for the Court's reputation are likely to be relatively insignificant, mainly because the underlying issue will rapidly become obsolete (unlike, say, the abortion or school prayer issues, which have remained controversial for over a quarter of a century).