In Defense of the Court's Legitimacy

Abstract

Even as it brought the 2000 presidential election to conclusion, Bush v Gore' gave rise to a flurry of attacks on the legitimacy of the Supreme Court. Many scholars criticized the Court for its creation of a new Equal Protection Clause claim never before seen, for its sudden imposition of a deadline that foreclosed any remedy, for its apparent hypocrisy in intervening into a local election dispute, and for its intervention into an utterly partisan dispute. Criticism usually would come as no surprise -it is merely the standard discussion about the actions of the institution that is the focus of much of our work in academia. While early opinion polls show that most Americans have decided to move on, it seems that many academic critics of Bush v Gore have decided to go beyond the usual mulling over of Supreme Court opinions. In the weeks following the Court's decision, prominent legal academics have voiced a number of objections that question the Court's very legitimacy, and in some cases have urged the political system to attack the Court. Many have characterized the decision as partisan and ungrounded in law.3 Some have even compared the justices to partisan lobbyists.4 As a result, these critics have called upon the Senate to refuse to confirm any Supreme Court justices during President Bush's term,5 while others have hit upon the idea of reducing the number of justices on the Court.6 Some have even gone so far as to compare the Court's alleged loss of legitimacy today to the Court's

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