The Longest Night: Polemics and Perspectives on Election 2000

By Arthur J. Jacobson; Michel Rosenfeld | Go to book overview

8
THE GHOSTWRITERS

One feature of the majority's opinion in Bush v. Gore1 struck a sophisticated observer of the Court immediately. “[T]he opinion, ” wrote Linda Greenhouse in the New York Times, “was labeled 'per curiam,' meaning 'by the court,' a label used by courts almost exclusively for unanimous opinions so uncontroversial as to not be worth the trouble of a formal opinion-writing process.” 2 The per curiam in Bush v. Gore was far from unanimous, hardly uncontroversial, and certainly the subject of a “formal opinion-writing process.U +201D If Greenhouse is right and the majority in Bush v. Gore not wrong, theirs must fall within the category of opinions suggested by “almost.” Greenhouse does not speak directly about the Court, only courts, and does not go into any detail about the occasions on which the Court, or, more precisely, a majority on the Court, labels an opinion “per curiam.” Without knowing this, a reader may be forgiven the impression that recourse to the per curiam device in Bush v. Gore was unusual if not aberrant and that only sinister motives explain it. So I decided to investigate the Court's per curiam practice in order to right any rhetorical injustice the press inadvertently may have inflicted on the majority by testing their use of the per curiam against such norms as may be implicit in the practice.

My review of the Court's use of per curiams does suggest norms justifying the majority in Bush v. Gore. But more than that, the norms put the shoe on the other foot. For it is the motives of the minority—specifically, Justices Breyer and Souter—not the majority, that the norms put in question. Had Justices Breyer and Souter complied with them, then seven justices would have joined the per curiam, not just five, and the result in Bush v. Gore would have been 7–2, not 5–4. The rhetorical, hence political, effect of the opinion would have been very different, depriving critics of the decision of

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