The Presidential Election Dispute, the Political Question Doctrine, and the Fourteenth Amendment: A Reply to Professors Krent and Shane

Abstract

In this analysis of the Supreme Court’s decision in Bush v. Gore, Professor Pushaw compares that opinion to the Court’s precedent established in Baker v. Carr. Baker set the stage for Bush, and while Professor Pushaw believes that both cases were wrongly decided, he argues that the Bush decision is more defensible because it departed less radically from the Court’s existing practice. Baker turned the political question doctrine into a prudential case-by-case judgment call. Ever since, the Court has almost always exercised this unbridled discretion in favor of intervening in heavily politicized disputes. Moreover, Baker provides a “precedent” for the Court’s Equal Protection Clause analysis in Bush.

Keywords: Bush v. Gore, Baker v. Carr, Equal Protection Clause

JEL Classification: K19, K39