Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  10 Court’s landmark abortion rights decision, Roe v. Wade , the plurality opinion in Planned Parenthood v. Casey declared that “the underlying substance of [the Court’s] legitimacy is of course the warrant for the Court’s decisions in the Constitution and the lesser sources of legal principle on which the Court draws.” 10 Further, the plurality stated, “a decision without principled justification would be no judicial act at all” and “[t]he Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures. . . .” 11 Likewise, the plurality opinion in Bowers v. Hardwick observed that “[t]he Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made cons- titutional law having little or no cognizable roots in the language or design of the Constitution.” 12 For the sake of the Court’s legitimacy, one must hope that the Justices are wrong about this, for it will be difficult to find reputable lawyers who believe that Bush v. Gore was “grounded truly in princi- ple” or “in the language or design of the Constitution,” rather than in the conservative Justices’ partisan preference for George W. Bush in the 2000 presidential election. 13 In the first part of this Article, I shall try to demonstrate that the Bush result can be explained only in terms of the conservative majority’s partisan political preferences. Part II will consider the like- ly impact of this ruling on the Court’s long-term institutional standing. 10 505 U.S. 833, 865 (1992). 11 Id . 12 478 U.S. 186, 194 (1986) (plurality opinion). 13 For some representative critiques of Bush , see Ronald Dworkin, “A Badly Flawed Election,” New York Review of Books , Jan. 11, 2001, at 53 (calling Bush “one of the least persuasive Supreme Court opinions that I have ever read”); Jeffrey Rosen, “Disgrace,” New Republic , Dec. 25, 2000, 18 (noting that the Justices, “by not even bothering to cloak their willful- ness in legal arguments intelligible to people of good faith who do not share their views, . . . made it impossible for citizens of the United States to sustain any kind of faith in the rule of law. . .”); Anthony Lewis, “A Failure of Reason: The Su- preme Court’s Ruling isn’t Convincing,” Pittsburgh Post-Gazette , Dec. 18, 2000, A-13 (judging the decision “a dismal failure,” judged by the standard of providing “reasoned arguments,” and concluding that it “invites people to treat the court’s aura of reason as an illusion”); Neal Katyal, “Politics over Principle,” Washington Post , Dec. 14, 2000, A35 (calling decision “law- less and unprecedented”); J. Dionne Jr., “So Much for States’ Rights,” Washington Post , Dec. 14, 2000, A35 (accusing the majority of “contort[ing] their own principles and creat[ing] new law”); Scott Turow, “No Turning Back neFrom the Dart the Court has Thrown,” Washington Post , Dec. 17, 2000, B1 (quoting Dean Terry Sandalow to the effect that the decision was “incomprehensible” and “an unmistakably partisan decision without any foundation in law”).