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IN HIS FIRST inaugural address (1861) President Abraham Lincoln echoed a sentiment that aptly describes the likely impact of Bush v. Gore (2000a). There he stated: . . . the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” (Lincoln 1991, 290) Lincoln’s rumination captures the essence, and implications, of what the U.S. Supreme Court did on December 12, 2000. Surely dissenting Justice Stephen Breyer had it in mind when he objected to the Court’s decision to stop the recount in Bush because the better solution was to let the political process resolve the issue. Halting the recount, of course, ended the election and gave George W. Bush the White House. No further legal or political action that could change the outcome was possible after the Court handed down its judgment. By “irrevocably fix[ing]” the dispute “the instant [it was] made, in ordinary litigation between [the] parties in personal actions,” the Court’s action took the election out of the people’s hands and, in the process, compromised its legitimacy for the reasons Lincoln and Breyer suggest . The Court should have chosen to exercise restraint and adhered to the 29 TWO The Politics of Constitutional Choices in Light of Bush v. Gore (2000) Christopher P. Banks political question doctrine because the value of preserving the Court’s institutional standing is of utmost significance. In addition to contending that the Court in Bush wrongfully departed from the political question doctrine, this chapter asserts that the Court’s short-term legitimacy suffered for another reason. Although it was delivered at one of the rare times the nation had its gaze squarely on the Supreme Court at a critical time in history, Bush had the perverse effect of creating a perception that the rule of law did not matter in adjudicating constitutional law cases. That activity is particularly disquieting because the judicial capacity to act as a faithful guardian of political rights relies on the people’s support of the rule of law and, in final analysis, the judiciary itself (as a coequal, political institution). Justice Breyer recognized this principle of statesmanship when he argued that the Court should not have addressed the equal protection issue that was raised in Bush because, in his view, vindicating a basic constitutional right was not part of Bush’s request to obtain procedural fairness in the election recount. Hence Breyer suggested that noninterference best preserved judicial legitimacy, a constitutional value that is too precious to ignore or trivialize when the nation is looking for political leadership from its government, especially in times of crisis. Acting with judicial restraint would have been closer to what Chief Justice John Marshall had in mind in Marbury v. Madison (1803), the landmark case that generated the political question standard: “that the province of the court, solely, is to decide on the rights of the individuals” (170). Furthermore, although any damage to the Court’s public standing may be negligible over time, the substance and perception of what the ruling represents as a viable precedent will last and have a clear impact on jurisprudence, the legal profession and, of course, society. Bush, especially in the short-term, is also not going to be too far from the Senators’ perceptions in the Democratic party whenever the fate of Bush judicial nominees have to be determined at a confirmation hearing. Perhaps the most enduring, and intangible, lesson of the case can only be measured by what the Court and country loses—which is faith in government—by traipsing into the political thicket. To be sure, the people’s confidence and the Court’s legitimacy must both be earned over time by principled decision-making that shows proper respect for the political branches. Consequently, any faith that was shattered by the events of election 2000 will be restored only when the judiciary exhibits the restraint, and wisdom, to make better constitutional choices in the future about when it ought to be the final arbiter of political disputes. CONSTITUTIONAL CHOICES AND POLITICAL QUESTIONS Although Bush v. Gore (2000a) is receding in the public consciousness, the opinion’s legitimacy ought to be revisited to see if the...


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