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“Wholly Without Merit”: The 10th Anniversary of Bush v. Gore

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Today is Yesterday was the 10th Anniversary of the Supreme Court’s disgraceful  Bush v. Gore decision.   Where exactly the decision ranks among the worst decisions in Supreme Court history depends on what metric you’re using.   Certainly, the Supreme Court has issued many, many more immoral rulings throughout its history.    But Dred Scott, Plessy, U.S. v. Cruikshank, Hammer v. Dagenhart, et al. were at least based on intelligible constitutional principles — evil principles, but actual principles, in each case shared by a substantial measure (if not an overwhelming majority) of the country’s political elites.    One can say the same thing of most of the other Rehnquist and Roberts Court decisions that have generated significant criticism — McCleskey v. Kemp and Parents Involved and Citizens United might have been based on the wrong constitutional principles, but they do rest on actual constitutional principles.   Bush v. Gore is different, in that it was essentially lawless all the way down.   Not only was the legal “principle” announced in the case flagrantly inconsistent with the past jurisprudence of the majority, even more unforgivably the nominal principle wasn’t even applied to the case itself.     What the Supreme Court does is inevitably “political” in a broad sense, but not necessarily in the sense of narrow partisan politics or favoring particular litigants.

For those interested in further expansion on these points, some of my previous posts on the topic:

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