This collection of articles on the presidential election, selected by two distinguished legal scholars from the University of Chicago, vary wildly in quality from subtle brilliance to pure bunk. None of the U.S. Supreme Court's defenders actually defends its final decision in Bush
v.Gore—Epstein and Richard Posner, for instance, attack the Florida Supreme Court in strained support of the Rehnquist/Thomas/Scalia concurrence; John C. Yoo, ironically, ends up defending the Court's legitimacy by arguing that the majority has been consistently hypocritical regarding its own judicial activism. Some critics partially return the favor of self-inflicted wounding, most notably Sunstein, who endorses the notion that the Court helped avoid a "constitutional crisis" (which Sunstein never adequately explains). Pamela S. Karlan and Richard H. Pildes offer excellent studies, illuminating the Court's disturbingly unacknowledged anti-democratic patterns. Pildes explores the justices' intuitions regarding the nature of democracy—it is fragile and dangerous for the conservatives, robust, trustworthy and self-correcting for Stevens and Ginsburg—reflected in decisions on issues such as fusion candidacies and candidate access to TV debates. Karlan places their equal protection decision in a larger pattern of conservative 14th Amendment judicial activism that has struck down the Religious Freedom Restoration Act as well as redistricting plans giving racial minorities roughly proportional political representation, creating an unacknowledged line of precedent hostile to legislative protections of minority rights. Some other critics reveal a disturbing naïveté in their almost mystical trust that the Court is beyond partisanship that befuddles otherwise promising, trenchant analyses. (Oct.)
Forecast:This postelection analysis is for lawyers and scholars, not the general reader.
