Using Law Against Itself: Bush V. Gore Applied in the Courts

Abstract

The decisions in Bush v. Palm Beach County Canvassing Bd. ("Bush I") and Bush v. Gore, ("Bush II") evidence the extent to which it now appears unremarkable for courts to play a role in even the most basic of political issues. While the doctrinal value of the Bush decisions is certainly important, the Bush decisions are far more valuable for their endorsement of methodologies available to anyone seeking political advantage under the cover of judicial legitimacy. This article explores those principles, practices and procedures. I start with an appropriate theoretical context. For that purpose I look to LatCrit theory rather than more ideologically traditional or doctrinal theory. Ironically, this expression of critical theory, grounded in progressive political programs, provides the best conceptual basis for interpreting the ostensibly traditionalist Bush cases. I use this theoretical context to identify eight core methodological lessons of the Bush cases: (1) "Be Consciously Political;" (2) "Be Literal;" (3) "Attack Precedent;" (4) "Create Contradiction;" (5) "Appropriate;" (6) "Exploit Uncertainty and Sentimentality;" (7) "Recruit Legitimacy;" and (8) "If All Else Fails, Overwhelm Law Through its Own Devices." I then explore the way these lessons have been internalized by the courts and applied in nearly one hundred published and unpublished judicial opinions issued since the publication of the Bush cases. Those opinions are windows through which one can see the ways in which litigants have attempted to extract meaning from the Bush decisions far beyond their officially sanctioned reading, and the ways in which judges have attempted to situate the Bush decisions within the body of American case law. In their least dangerous sense, the lessons, as applied, suggest the ways in which the juridification of politics has become institutionalized in federal and state courts. The courts now rival the legislature as the venue par excellence for the resolution of political issues of every description. But the lessons also suggest the naturalization, within an ostensibly conservative political jurisprudence, of methodologies of legal perversion, of the use of law against itself. Having made a vocation of criticizing the political left for the nihilistic evils of critical and other progressive approaches to law, a so-called conservative court has gone a long way to implement a jurispruence of ultimate relativism and indeterminacy. Now that is irony!

Keywords: constitutional law, constitutional litigation, jurisprudence

JEL Classification: K19, K39, K40