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Reanalyzing Bush v. Gore: Democratic Accountability and Judicial Overreaching, 72 U. Colo. L. Rev. 953 (2001)


This Article addresses two central criticisms of the United States Supreme Court's treatment of the issues raised by the disputed Florida election and ultimately resolved in Bush v. Gore: that the Court violated principles of democratic process and dramatically overstepped the boundaries ofjudicial review. As will become apparent, the Article gives only modest attention to the text of the many opinions by the Florida and United States Supreme Courts in the Bush v. Gore drama. It will be an interesting question in the years ahead whether the formal legal grounds set forth as the basis of the United States Supreme Court's per curiam decision or of any of the concurrences or dissents will survive as plausible foundations for election jurisprudence. This Article ignores that question and, instead, attempts to analyze the Court's various judgments during the period of the dispute in a broader sense. Just as the purely legal grounds of the United States Supreme Court's opinions in cases such as Dred Scott or Brown v. Board of Education are of less interest than the substantive judgments made by the Court in its institutional role under the Constitution, so I believe the purely legal grounds of Bush v. Gore deserve less attention now.

The most serious criticisms of the way that the United States Supreme Court resolved the Florida election are not that the majority opinion contains logical failures or ignores conflicting precedent, however accurate such complaints might be. The most serious criticisms are that the United States Supreme Court fundamentally breached its Constitutional role by disregarding basic principles of the process of democratic accountability and by committing what some commentators, including my colleague Bruce Ackerman, have called "a Constitutional coup." This Article addresses those criticisms. Part I considers the claim that the United States Supreme Court, by overruling decisions of the Florida Supreme Court, abused the political process and removed all possibility of accountability to the citizenry. Part II examines the events in the Florida election drama in more depth to analyze whether the United States Supreme Court's various rulings improperly usurped power allocated by the Constitution to the citizenry.

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