Remember Bush v. Gore
When Bush v. Gore was decided in December of 2000, everyone thought it was a hugely significant case. But was Bush v. Gore a significant case after all?
When the votes were actually counted, after the fact, they showed that Bush would have won anyway. Nearly eight years later, it is safe to say that the case has not generated a jurisprudential revolution, even though a panel of Ninth Circuit judges tried to stop the California recall election by relying on Bush v. Gore, only to be overturned by an en banc panel of the Ninth Circuit. The Supreme Court has not cited the case at all, as far as I know, since Bush v. Gore was decided. Indeed, it is hard to imagine a constitutional law case decided in the past eight years that has been referenced less than Bush v. Gore has been referenced.
Many predicted that Bush v. Gore would undermine public support for the Court. Justice Stevens wrote in his dissenting opinion that “[t]ime will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
Most of the studies of which I am aware show that Bush v. Gore has not, over the longer term, affected the Supreme Court’s image in the public eye. Some studies show that there were short-term effects, but other research has demonstrated that over the longer-term the image of the Court has not been affected. If anything, some research has shown that public knowledge of the Court has increased, which is probably a good thing.
There is evidence that, consciously or not, law professors have tended to regard Bush v. Gore as not too big of a deal. As I taught my first Constitutional Law class this past year, I was shocked to see that Bush v. Gore was not even excerpted in the casebook I used, and was only referenced in passing in a few places.
But still, it HAS to be a big deal for the Supreme Court to intervene and essentially decide a presidential election. The case might not have made a big difference in measurable ways–or at least the measurable ways mentioned above–but when a court intervenes in that way, it has enormous symbolic importance in a democracy. So, even though Bush v. Gore does not affect any of the doctrinal issues in the (structural) constitutional law class, I assign excerpts of the case, for reasons of cultural literacy.
What do others do? I have not surveyed all of the casebooks, but my sense is that the casebook I used was not alone in not paying too much attention to the case. Do people assign this case? In what part of the class?