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

11  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  I. Bush v. Gore : Law or Politics? Just one day after the Court rendered its decision in Bush v. Gore , Justice Clarence Thomas appealed to a group of high school students visiting the Court not to attribute the ruling to the Justi- ces’ partisan preferences: “I have yet to hear any discussion, in nine years, of partisan politics among members of the court.” 1144 Chief Justice Rehnquist, asked by the press to comment on Thomas’s re- marks, agreed “absolutely” with his brethren’s statement. 1155 It is an interesting question whether these two Justices genuinely believe their pretensions to nonpartisan decisionmaking. Court watchers, possibly less in need of self-delusion, are likely to regard such claims as preposterous. As a preliminary matter, it is helpful to identify precisely what distinguishes Bush v. Gore from other cases of constitutional inter- pretation. Any serious student of constitutional law appreciates that political ideology necessarily influences constitutional interpretation. The text of the Constitution is so open-ended, and the debate over permissible sources of interpretation so inconclusive, that it is virtu- ally impossible for a judge not to be influenced by political ideology when construing the Constitution. 16 Thus, we should not be (and most of us are not) surprised when the Justices divide, along predic- table political lines, when adjudicating the constitutionality of abor- tion restrictions, school prayer, gay rights, affirmative action, minority voting districts, and a wide variety of federalism issues–just to name some of the more prominent constitutional disputes adjudicated by the Rehnquist Court. 17 Yet, Bush v. Gore is importantly different from these other cons- titutional cases. It is one thing to say that a judge’s political ideology influences her constitutional interpretations. It is quite another to say that her partisan political preferences do. The Bush outcome was not a product of the conservative Justices’ political ideologies. As we shall see, these Justices’ oft-professed commitment to federalism and to ju- dicial restraint logically should have led them to the opposite result. 14 Robert G. Kaiser, “Opinion is Sharply Divided on Ruling’s Consequences,” Washington Post, Dec. 14, 2000, A25. 15 Id. 16 See, e.g., Michael J. Klarman, Fidelity, Indeterminacy, and the Problem of Constitutional Evil, 65 Fordham L. Rev. 1740 (1997). 17 See cases cited infra notes __.