A new perspective on the Court
UPDATE July 9: The final version of Professor Cole’s article can be found here.
Georgetown law professor David D. Cole, who has a gift for thinking originally about the law, has written a provocative new article suggesting that the Supreme Court has moved toward more liberal results as it seeks to recover the legitimacy he argues was jeopardized by Bush v. Gore (2000). The Court’s record since that ruling put an end to the constitutional crisis over the 2000 election and put George Bush in the White House suggests, Cole writes, that the Justices realize that that legitimacy was put into doubt and have moved to “rehabilitate the Court’s image by reducing partisan division, correcting to some extent the Court’s considerably conservative tilt, and emphasizing the importance of a rule of law that is distinct from and rises above politics.”
The article, to be published in a forthcoming issue of Georgetown Law Journal, is titled “The Liberal Legacy of Bush v. Gore.” The full text can be found here.
Sadly, Professor Cole’s thesis has been eviscerated by Hudson v. Michigan.
Michael R. Levine
Comment by supremecourt — June 18, 2006 @ 12:26 pm
His thesis hasn’t really been eviscerated by Hudson. His argument is that the conservative justices who were on the court at the time that Bush v Gore was decided may have been tempered. Kennedy joined the majority but in a concurring opinion sought to limit the reach of the decision. It is widely believed that O’Connor was ready to rule with the liberals. The way this case played out actually supports Cole’s thesis (assuming of course that O’Connor was actually going to vote with the liberals which is pure speculation). The outcome potentially may have swung from liberal to conservative because of the replacement of O’Connor with Alito. Obviously Alito was not on the court at the time of Bush v. Gore and thus doesn’t feel the same need to regain it’s stature as a result of the decision.
Comment by ggulaw1L — June 18, 2006 @ 2:27 pm
Curious that Professor Cole’s thesis turns on the general public’s perception of The Court, the “mainstream” media’s take on The Court, and legal academia’s view of The Court. With sources like those, I’m surprised that the DNC’s take wasn’t included.
Comment by Minnesota Litigator — June 18, 2006 @ 6:52 pm
I’m not really sure that he can use Blakely and Crawford to support his thesis, at least insofar as it applies to Justice Scalia, since both those cases would seem to represent culminations of years of Scalia opinions on the subjects.
Comment by Simon — June 19, 2006 @ 5:37 pm