How History Will View The Court


Last January, a month after the supreme court handed down its hugely controversial decision in Bush v. Gore–ending the month-old election stalemate and turning the White House over to George W. Bush–legal scholars across the country joined in protest. In a full-page ad in The New York Times, 554 law professors accused the high court of “acting as political proponents” for Bush, and “taking power from the voters.” Worse, the ad scolded, “the Supreme Court has tarnished its own legitimacy.”

That criticism has yet to subside. Some nine months into the Bush presidency, the debate over the ruling among legal scholars goes on. Many of the country’s most respected legal minds have weighed in on Bush v. Gore. The critics contend the court should never have taken the case in the first place. It was a matter of state law, and should be left to state courts, as is the tradition, they argue. The majority’s claim that the Florida State Supreme Court’s recount procedures violated the Constitution’s equal-protection clause is both novel and out of whack with conservative doctrine, they add. And they smirk at the justices’ suggestion that their legal analysis should not carry the power of precedent.

The attacks are framed in unusually unflattering terms. Here’s a sample. Yale Law School’s Bruce Ackerman: “A blatantly partisan act, without any legal basis whatsoever.” Harvard’s Alan Dershowitz: “The single most corrupt decision in Supreme Court history.” American University’s Jamin Raskin: “Bandits in black robes.”

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