Document Type

Article

Publication Title

University of Chicago Law Review

Abstract

Bush v Gore is the most dramatic moment in a constitutionalization of the democratic process that has been afoot for nearly forty years, ever since Baker v Carr dramatically lowered the "political question" barrier to judicial oversight of politics. More recently, that constitutionalization has increased in pace, as issues like the status of political parties, the regulation of campaign finance, the role of race and partisanship in drawing election districts-and now, the counting of individual ballots-have been transformed into grist for the constitutional mill. As part of my own effort to explore this emerging constitutional law of democratic politics as a systematic whole, I want to assess Bush v Gore in this larger context. And I want to do so less in terms of doctrinal analysis (there will be time enough for that) or partisan politics (was the decision an act of political will or of legal judgment?) and more as a matter of what we might call judicial culture. By judicial culture, I mean the empirical assumptions, historical interpretations, and normative ideals of democracy that seem to inform and influence the current constitutional law of democracy. Suffice it to say, when judges are as divided among themselves as in the cases I have described-within the Supreme Court as well as between that Court and the lower courts-it might be useful to assume that the formal sources of legal judgment are sufficiently open-textured as not to compel directly a uniquely determinate conclusion. At that point, the implicit understandings of democracy with which all judges necessarily work-whether American democracy is fragile or secure, whether it functioned better or worse at some (partially hypothesized) moment in the past, whether democracy means order and structure or chaos and tumult-have the greatest latitude to operate. Unlike Bush v Gore, the cases I describe have no obvious partisan consequences in terms of the fortunes of the Democratic or Republican Parties or their candidates. Yet it is of considerable moment, I believe, that certain justices consistently gravitate toward the same side of these cases-the five-member Bush majority that terminated the Florida recount on one side, Justices Stevens and Ginsburg on the other. Just as interesting is that Justice Souter, who occupied a sort of middle ground in Bush v Gore, is the justice sometimes in dissent, sometimes in the majority, in these signal cases. Whatever role analytical considerations and partisan politics might have played in Bush v Gore, there is another dimension-the cultural one-potentially at work. By looking for larger patterns in the Court's recent democracy cases, I want to explore that cultural terrain.

First Page

695

DOI

https://doi.org/10.2307/1600398

Volume

68

Publication Date

2001

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