61 Fla. L. Rev. 969 (2009)
INTRODUCTION :: It is tempting to blame the United States Supreme Court’s decision in Bush v. Gore for the evils the Bush Administration inflicted on the nation. If only Al Gore had become president, there would not have been the disastrous war in Iraq or the enormous deficit-spending to fund it, which has contributed to the worst economic problems since the Great Depression. If only Al Gore had become president, the responses in the War on Terror would have been more measured and would not have included torture and indefinite detentions without due process. If only Al Gore had become president, then Justices William Rehnquist and Sandra Day O’Connor would have been replaced by individuals far more moderate than Justices John Roberts and Samuel Alito.
From the lens of 2009, after eight years of the Bush presidency, the consequences of Bush v. Gore are worse than it could have seemed on December 12, 2000, when the decision came down. Of course, the problem with this way of looking at Bush v. Gore is that George W. Bush might well have become president even if the U.S. Supreme Court never had become involved or had affirmed the Florida Supreme Court’s ruling. Counting all of the uncounted votes (what Gore urged) might have led to a Bush victory anyway. Also, if the Court stayed out of it, the political process ultimately may well have resolved the matter in Bush’s favor.
Professor Akhil Amar’s focus is not on these practical consequences of Bush v. Gore, but instead on the judicial opinions. He persuasively explains why the Florida Supreme Court’s decision was at least reasonable, if not correct, and why the majority of the U.S. Supreme Court got it wrong. I agree with him. However, I want to focus on the larger question: What does Bush v. Gore tell us about judicial review and the judicial power?
For decades, conservatives have attacked what they perceive as illegitimate judicial activism. The 2008 Republican platform declares: “Judicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public. This must stop.” And conservatives, such as Justice Antonin Scalia, purport to pursue a method of analysis having no relationship to the views or ideology.
This picture of judging has great rhetorical force. At his confirmation hearings for Chief Justice, John Roberts proclaimed that: “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see an umpire.” The power of this conservative rhetoric also was seen in Justice Sonia Sotomayor’s recent confirmation hearings where she repeatedly told the members of the Senate Judiciary Committee that judges must “apply not make the law.”