Race, 'the Race', and the Republic: Re-Conceiving Judicial Authority After Bush v. Gore

Abstract

The recent federal Supreme Court opinions in Bush v. Gore cast in stark light the manner in which constitutional interpretation is preparing the way for constitutional transformation: a federalization based on devolution of authority from the central government to the states, a shift in interpretive authority from the state to federal courts, and a narrowing of what it means for a court to say what the law is, with a resulting transfer of interpretive authority from the courts (and ultimately even the federal Supreme Court) to the political branches of the central government. These transformations are tinged with irony. The changes are being made possible by jurists who - though paragons of the strictest traditional interpretation of Constitutional norms - now embrace the philosophy of judging they have spent a lifetime fighting. Yet, in their hands, the activist and evolutive jurisprudential philosophy utilized by the Supreme Court since the mid-20th Century is used to unmake the substantive results for which it was crafted. It seems, then, that the authentic heirs of the activist mantle of the Warren Court are those jurists who, though professing a desire to destroy the Warren Court's legacy, have actually taken the work of the Warren Court to new heights, opening the way for another mutation of the Republic. Thus the ultimate irony: per curiam, concurrence and dissents have made it possible for others, at their leisure, to find, within the arcana and lacunae of the Constitution, other places from which it can be divined that states and their governments, that courts and their judging, can be limited or controlled.

Keywords: Constitutional law, jurisprudence, race, judicial activism

JEL Classification: K19, K39, K49