Academic journal article Texas Law Review

A "Tincture of Justice": Judge Posner's Failed Rehabilitation of Bush V. Gore

Academic journal article Texas Law Review

A "Tincture of Justice": Judge Posner's Failed Rehabilitation of Bush V. Gore

Article excerpt

BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS. By Richard A. Posner.^ Princeton: Princeton University Press, 2001. Pp. xvi, 266. $24.95.^^

I. Introduction

Those expecting Judge Richard A. Posner's new book, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts, to be a convincing defense of the Supreme Court's decision to end the recount of Florida votes for president in the 2000 election will be disappointed. The book is written clearly, in Posner's usual conversational style, and is full of strong arguments on peripheral points related to the 2000 election. But liberals will come away unconvinced by Posner's admittedly result-oriented argument that the Court's decision was necessary to avert a crisis. Conservatives, while likely pleased that Posner has made a more straightforward case for the outcome in Bush v. Gore1 than the Court majority did, will find little comfort in Posner's result-oriented approach, which he tries to dress up as "pragmatism."2

Moreover, at many points, Posner's analysis reads more like a "critical legal studies"3 analysis of the case than the sober analysis of a conservative jurist. To give one example (more follow below), Posner defends the December 9 decision of the Court to stay the recount ordered by the Florida Supreme Court4 on the grounds that the five-member majority had already

prejudged the outcome of the case, before briefing or oral argument.5 Given the prejudgment, Posner argues, the Court was correct to stop the recount before it could issue its decision.6 Nor will conservatives be particularly pleased by his approach to statutory interpretation and federalism issues. In the end, Posner's position on Bush v. Gore is "conservative" only in the sense that it favors the orderly transition of power over allowing a political decision to be made by accountable politicians.

This Review proceeds in two parts. In Part II, I focus on the most important part of Posner's book: his defense of the Supreme Court's decision in Bush v. Gore. Posner defends the Supreme Court's decision not as a matter of doctrine (indeed, he criticizes its doctrinal approach) but as necessary to prevent a constitutional or political crisis. Yet he fails to make a plausible case for such a crisis. Ultimately, Posner's analysis shows a cavalier and dangerous attitude about the line between law and politics and little appreciation for when court intervention in politics is appropriate.

In Part III, I explore Posner's analysis of the Florida Supreme Court's decisions, contrasting Posner's solicitousness toward the U.S. Supreme Court's decision (if not its reasoning) with his disdain for the Florida high court's decisions. For Posner, law exists as something real when he can use it as a club to beat down the Florida court, but it is a convenient facade for the U.S. Supreme Court to give legitimacy to its pragmatic role in preventing a crisis. Indeed, someone of different political stripes who applied Posner's result-oriented jurisprudence could find an equally strong justification for the Florida court decisions (if not their reasoning).

I conclude that if Posner's analysis remains the leading "conservative" defense of Bush v. Gore, liberals will have the better of the argument against the decision for some time to come. Nonetheless, Posner's approach reveals the dangers of result-oriented election-law jurisprudence, advocated by liberals and, now, conservatives.8

II. Bush v. Gore and Law v. Politics

As Posner recounts,9 the Supreme Court's decision in Bush v. Gore has been vilified by scores of academics and others. Posner's central aim in his book is to rehabilitate the Court's decision, though not the reasoning. His attempted rehabilitation, however, eviscerates the line between law and politics and provides no suitable stopping point for court intervention in the political process. Before getting to Posner's rehabilitation and the problems with it, I begin with a bit of background on the decision. …

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