Working Paper No. 09-59:
Bush v. Gore at the Dawning of the Age of Obama

Author(s):

Nelson Lund

Date Posted: November 2009

Availability:
Abstract (below) | Full text (most recent) on SSRN

Abstract:

In “Bush, Gore, Florida, and the Constitution”, 61 Fla. L. Rev. 945 (2009), Akhil Amar restates the academic consensus that emerged very quickly after Bush v. Gore was decided. According to his view, the Florida Supreme Court’s decision was correct, while five Republicans on the U.S. Supreme Court concocted a novel, untenable, and absurdly ad hoc interpretation of the Fourteenth Amendment to stop the Florida courts from conducting a recount of the ballots. Three of those Republican Justices, moreover, are alleged to have disingenuously joined a majority opinion that “ran counter” to their previous views and was inconsistent with “originalism.” What’s more, these three also endorsed an interpretation of Article II that Professor Amar thinks is easily refuted by his own “crisp and cogent” defense of the Florida court’s decision.

Using evidence that has been on the public record for many years, this short response demonstrates that Professor Amar’s critique of Bush v. Gore rests on a series of red herrings, factual misstatements, and critical omissions. There is apparently no hope that the unrebutted evidence can ever persuade those who are consumed with disdain for Republicans, or Bush, or “conservative” Justices. Today, however, as we stand at what Professor Amar calls “the dawning of the Age of Obama,” there are also many students and lawyers who have encountered snippets of Bush v. Gore in a case book, along with editorial comments from professors who have publicly excoriated the Court and its decision. Perhaps some of these readers can be moved to take a closer, and unprejudiced, look at the facts. They will find a story that bears almost no resemblance to the one told by Professor Amar.