designed by the Florida Supreme Court, and that court offered no coherent, let alone compelling, justification for the discrimination it was imposing on the election process. Nor was any justification offered by either of the two dissenting U.S. Supreme Court justices who claimed that they could not perceive the completely obvious constitutional problem identified by the other seven.
The Bush v. Gore majority opinion has been harshly criticized—by the dissenters and by a wide range of commentators—for a variety of supposed sins. The Court should have refused to hear the case for fear of creating an “appearance” of political partiality. The Court should have refused to apply its Fourteenth Amendment precedents for fear of having them taken seriously in future cases. The Court should have ignored the Florida court's one-day-old decision about the meaning of Florida law, thereby inviting that court to commit further violations of federal law. The Court should have refused to apply well-established federal law in this case because of a supposed commitment by the Court's conservatives to some notion of federalism imputed to them by people who have apparently never read their opinions.
None of these criticisms has the slightest legal merit. All of them are political criticisms, offered by people who have forgotten the distinction between law and politics, or who do not want the distinction to exist, or who do not want to be snickered at for defending the distinction. Once one surrenders that distinction, however, all of law becomes at best a decadent exercise in sophistry.
Faced with a gross violation of law by a subordinate court, the Bush v. Gore majority did exactly what an appellate court is supposed to do. It reversed the erroneous decision and upheld the law. That this action has provoked so much outrage and so little reasoned approval suggests that the history of our contemporary legal culture may have to be written by a Tacitus, or perhaps a Juvenal.
Thanks to Peter Berkowitz, Douglas R. Cox, C. Boyden Gray, Mara S. Lund, John O. McGinnis, and Richard A. Posner for helpful comments, and to the Law & Economics Center at George Mason Law School for generous financial support. I am especially grateful to Stephen G. Gilles for his relentlessly skeptical and constructive criticisms of several preliminary drafts. A more detailed and fully annotated version of this chapter will appear in the Cardozo Law Review as part of its “Votes and Voices” symposium.