electors but could not be made in an unequivocal way due to intrinsic difficulties in the way the votes are counted. For an institution like the Supreme Court—not subject to popular control and a body that unlike Congress cannot be punished by means of elections—to take this decision upon itself is an encroachment on a constitutional state that is hard to defend. A similar conception is defended in Italy, which does not consider popular suffrage as the sole or the last word in the political process. But “governing with judges” is not the same thing as letting “irresponsible” judges choose the holders of elective office.
The U.S. Supreme Court, in deciding to choose he who will choose its own future members, consumed an enormous amount of credibility as an impartial organ. “Millions of Americans, ” wrote Cass Sunstein at the end of the struggle (and surely millions of Europeans think this as well), “believed that the court had acted in an unacceptably partisan manner.… Bush v. Gore raised widespread doubts about the neutrality of the Supreme Court.” 24 Considering the very high institutional cost of this likely consequence, Justice Breyer wrote in his dissenting opinion that “the Court was wrong to take this case.” 25 In Bush v. Gore everything leads to the thought, at least on the other side of the Atlantic, that the Supreme Court abused its power, substantially harming its image as an institution super partes. Unless there is a more profound misunderstanding, Americans are in fact disposed to accept the partisan political character of their judicial power.
In a recent book on justice, a prominent scholar of the Italian judicial system writes aptly that the judge, a neutral third with the job of resolving a conflict between two parties, must convince them that he or she is not taking sides. “His or her impartiality—and above all his or her image of impartiality—is thus preserved and, moreover, strengthened as much as possible.” 26
Whatever the reasons motivating the individual justices, the majority's decision cannot be seen as illustrating the indisputable prestige and impartiality of the supreme organ of judicial power in the United States. It seems, unfortunately, to have behaved like a politically irresponsible miniparliament rather than as a high court of justice.
Epigraph: De la démocratie en Amérique, vol. 1 (Paris: Gallimard, 1986), 401 (De l'esprit légiste aux É tats-Unis, et comment il sert de contrepoids àladémocratie): “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question” (Democracy in America [New York: Vintage, 1945], 290). I owe this quotation to John Ferejohn, whom I thank.