Partial (but not Partisan) Praise of Principle
Partial (but not Partisan) Praise of Principle
This chapter discusses the rather complex but crucial role of principle in judicial decision making. It begins with a sketch of three possible opinions that might have resolved Bush v. Gore in a principled way—one favoring Bush, one Gore, and one indeterminate at the time the Supreme Court decided the case. It is argued that the Court failed to take any of these models seriously, awarding the presidency without committing itself to any coherent constitutional principle. While unprincipled decision making may sometimes be acceptable, even wise, the problem confronting the Court did not remotely authorize such a breach with established judicial norms. It is only by committing themselves even more firmly to legal principle that federal judges may ultimately undo the harm caused by the aberrational character of the Supreme Court's decision.
Keywords: Supreme Court, Bush v. Gore, electoral disputes, constitutional principle, judicial decision making
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