Gore v. Bush Considered From
a Conservative’s Point of View
From an article in the November, 2001, issue of the conservative journal
Commentary, by its managing editor, Gary Rosen:
Indeed, taken to its logical conclusion, the notion of equal protection
affirmed by the court in Bush v. Gore would draw into question virtually
every aspect of the country’s locally run, state-administered and highly
decentralized electoral system--a point that the conservative justices
themselves, confronted by a different set of litigants, could have been
counted on to make.
This may explain what is perhaps the most objectionable part of the
majority’s opinion. As if to confess their bad faith, the justices
announced toward the end of the decision that they were not, in fact, playing
for keeps. Because “the problem of equal protection in election processes
generally presents many complexities,” they wrote, “our consideration
is limited to the present circumstances.”
Alongside this extraordinary disavowal, Alan Dershowitz places the following
passage from a 1996 opinion by Justice Scalia, in which the Court’s most
articulate conservative aptly described the institution’s proper role:
“The Supreme Court of the United States does not sit to announce ‘unique’
dispositions. Its principal function is to establish precedent--that is, to
set forth principles of law that every court in America must follow. As we
said only this term, we expect both ourselves and lower courts to adhere to
the ‘rationale upon which the Court based the results of its earlier
decisions.’ ...That is the principal reason we publish our opinions.”
. . . Moreover, in light of the potential conflicts of interest involved--with
candidate Bush having repeatedly declared his admiration for Justices Scalia
and Thomas and the justices themselves having an obvious stake in who might
be appointed to join them in the future--the court would perhaps have been
well advised, in effect, to recuse itself.
