In doing so, Bush v. Gore is not the isolated or aberrant example many consider it. Supreme Court resolution of a disputed presidential election is, of course, a singular event in American history. But Bush v. Gore is also the culmination of a more enduring, more pervasive judicial tendency. More and more, the Supreme Court is coming to engage in a process of “constitutionalizing democracy.” By that I mean the Court is increasingly using constitutional law to make itself the exclusive arbiter—not of conventional individual rights, but of the most basic aspects of democratic politics itself. This is a profound but underappreciated transformation in American constitutional jurisprudence. The resolution of the most political choice of all, the presidential election, is a moment of high drama, but it is best seen as the most visible symbol of a deeper transformation. Whether it comes to the structure of political primaries, or the design of election districts, or the financing of election campaigns, or the role of political parties in the American democratic system, the current Supreme Court increasingly comes to find the Constitution provides answers to these questions. I have documented this emerging jurisprudence elsewhere. 20 As a matter of the underlying design of democratic institutions—whether for resolving disputed presidential elections or other issues of democracy the Court now constitutionalizes almost casually—we ought to wonder where it is wisest to draw the line between constitutional law and democratic politics when it comes to the most fundamental aspects of democracy itself.
This essay is based on a presentation on the 2000 Election Dispute given at New York University School of Law on January 17, 2001.