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Bush v. Gore: It’s your problem now


I agree with Dahlia Lithwick that the Supreme Court is unlikely to appoint the President again in 2004. Not, however, because such appeals would not have “any legal basis.” The “our considerations are limited to the present circumstances” cop-out doesn’t make the legal principles adduces of Bush v. Gore inapplicable to any future case; it’s just not clear which cases will have similar enough circumstances. (And, obviously, Bush v. Gore was such dogshit jurisprudence precisely because the alleged equal protection violation discovered in by the Justices–that ballots are counted differently in different counties without clear standards–are so common as to be banal.) The inevitable litigation that Bush v. Gore will mobilize will, in fact, be perfectly legally plausible.

However, there’s little reason to believe that the Supreme Court will resolve any problems created by its historic act of bad faith that arise next Tuesday. I think Lithwick is correct that O’Connor was genuinely surprised by the outrage Bush v. Gore created, and I doubt the Court will be willing to do this again. Moreover, Republican control of Congress means that any dispute comparable to 2004 will likely be resolved in Bush’s favor anyway. The Court would, I think, be willing to intervene only in the unlikely case that the Justices were unanimous about the outcome of an appeal. Otherwise, any post-election chaos will be resolved by state courts and legislatures.

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