Overcoming Democracy: Richard Posner and Bush V. Gore

Abstract

This paper evaluates Judge Richard A. Posner's book "Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts," which provides a valuable window into the Supreme Court. Partisan divisions are at a low ebb after 9/11; thus, it may be possible to think constructively about the 2000 election issues that go beyond who should be president, such as the role of the judiciary in governance. The disputed Florida vote count emphasized the importance of courts in American politics. Judge Posner posits that constitutional law is "[a]n incoherent deeply politicized body of case law" from which justices and academics are "free to pick favorite [] . . . doctrines and decisions and to pronounce those favorites 'the law.'" However, justices have consistently claimed that their decisions rested on what they believed the Constitution required. If Posner is right, then American democracy is damaged at its core by a judiciary with a disdain for democratic politics and in particular for Congress. Constitutional adjudication does not require judges to ignore the practical consequences of their decisions in search of some single "right answer." But neither does it license them to displace political processes whenever they believe it is in society's interests to do so.

Keywords: Richard A. Posner, 2000 Election, presidential election, supreme court