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Gore v. Bush Considered From
a Conservative’s Point of View

From an article in the November, 2001, issue of the conservative journal Commentary, by its managing editor, Gary Rosen:

Indeed, taken to its logical conclusion, the notion of equal protection affirmed by the court in Bush v. Gore would draw into question virtually every aspect of the country’s locally run, state-administered and highly decentralized electoral system--a point that the conservative justices themselves, confronted by a different set of litigants, could have been counted on to make.

This may explain what is perhaps the most objectionable part of the majority’s opinion. As if to confess their bad faith, the justices announced toward the end of the decision that they were not, in fact, playing for keeps. Because “the problem of equal protection in election processes generally presents many complexities,” they wrote, “our consideration is limited to the present circumstances.”

Alongside this extraordinary disavowal, Alan Dershowitz places the following passage from a 1996 opinion by Justice Scalia, in which the Court’s most articulate conservative aptly described the institution’s proper role:

“The Supreme Court of the United States does not sit to announce ‘unique’ dispositions. Its principal function is to establish precedent--that is, to set forth principles of law that every court in America must follow. As we said only this term, we expect both ourselves and lower courts to adhere to the ‘rationale upon which the Court based the results of its earlier decisions.’ ...That is the principal reason we publish our opinions.”

. . . Moreover, in light of the potential conflicts of interest involved--with candidate Bush having repeatedly declared his admiration for Justices Scalia and Thomas and the justices themselves having an obvious stake in who might be appointed to join them in the future--the court would perhaps have been well advised, in effect, to recuse itself.

November, 2001


Copyright © 2004 by Jerome Doolittle