Legal scholars address the complex matter of the 2000 presidential election, lending weight to those who see its outcome as a judicial coup.
For those who have tried to put it out of their minds, Dworkin (Law/NYU and Philosophy/ University College, London; Sovereign Virtue, 2000) offers a helpful summary of that misbegotten election, held on November 7: a close call of votes in Florida and allegations of vote fraud and misleadingly constructed ballots led candidate Al Gore to follow the provisions of Florida law and demand a manual recount in four counties; Florida secretary of state and George W. Bush campaign official Katherine Harris refused to extend the deadline when the recount was not completed on time; suits and countersuits followed; on December 12, the US Supreme Court voted to end the recount, thereby awarding the election to Bush. In a spry and subtle argument, conservative jurist and legal scholar Richard Posner offers a worst-case analysis of what might have happened had the Court not decided so: in the face of an apparently unbreakable deadlock (inasmuch as candidate Bush’s brother, the governor of Florida, might not have certified a Gore victory after a recount), the US Congress would have had to declare an acting president, probably Treasury Secretary Lawrence Summers; absent the Court’s “pragmatic adjudication,” the country would thereupon have been plunged into a constitutional crisis. Such a crisis, Dworkin retorts, would not necessarily be a bad thing, and in any event, the Court’s decision was a conservative fiat that shamed the nation more than any back-and-forth in courts and Congress would have. Laurence Tribe, Lani Guinier, Richard Pildes, Nelson Polsby, and Cass Sunstein examine other aspects of the Court’s decision, while historian Arthur Schlesinger sketches out a modification of the present winner-take-all Electoral College system so that the winner of the popular vote—in this instance Gore—is henceforth more likely to earn the electoral vote as well.
Though accessible to nonspecialist readers, primarily of interest to those already well versed in constitutional law and electoral procedure.