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  12 Rather, the Bush outcome was a product of these Justices’ partisan political preference for George W. Bush, which, for at least a couple of them, may have been enhanced by their desire to retire from the Court while a Republican President is in office to pick their replace- ments. Another way of stating the point is this: Had all the other facts in the Florida election imbroglio remained the same, but the situation of the two presidential candidates been reversed, does anyone se- riously believe that the conservative Justices would have reached the same result? 18 It is telling how even Republican commentators defen- ding Bush generally have refrained from arguing for this conclusion. 19 This means that the result in Bush v. Gore depended on the or- der in which the parties’ names appeared on the case caption. This is extraordinary. Every first year law student is taught that a minimum requirement of the rule of law is that the outcome of cases ought not to vary simply as a result of reversing the parties to the litigation. It may simply be a failure of imagination, but I cannot think of another Supreme Court decision about which one can say with equal confi- dence that switching the parties to the litigation, and nothing else, would have changed the result. 18 Republican defenders of Bush probably would respond that the liberal Justices likewise voted their partisan political preferences. Yet, it is not so clear that this is true. First, two of the Bush dissenters, Justices Souter and Stevens, were Republicans for most of their adult lives, and for all we know still consider themselves to be such. While both of these Justices do evince liberal voting patterns in constitutional cases, it seems unjustified to assume that either or both of them necessarily supported the Democratic presidential candidate in the 2000 election. More importantly, it is unfair to the four dissenters to assume that they would have voted the opposite way had the parties been reversed. The majority and dissenting opinions are similar in that each set of Justices reached results that seem consistent with their partisan political preferences (on the dubious assumption, questioned above, that Souter and Stevens preferred Gore to Bush). The two sets of opinions are dissimilar, as I hope to show, in that the dissenters followed existing law, while the majority made up new (bad) law. Under these circumstances, it seems a compelling inference that the Justices in the majority allowed their political preferences to trump the law. It is far more dubious to infer that the dissenters followed their political preferences rather than the existing law. 19 Republican commentators defending the Court’s ruling have tended to emphasize that the Court saved the country from a constitutional crisis, or that it was Gore who initially invited judicial resolution of the election controversy (and thus scarcely can be heard to complain when the Supreme Court provided that resolution), or that Democrats are hypo- critical to complain of judicial activism, which they invented. See, e.g., Paul A. Gigot, “Liberals Discover the Tyranny of the Courts,” Wall Street Journal , Dec. 15, 2000 (noting that “having turned the Supreme Court into a superlegislature, the left is now horrified to see what it’s created” and defending the decision on the ground that “it saved the country another month of fighting before reaching the same result”); Charles Krauthammer, “Defenders of the Law . . .,” Washington Post , Dec. 15, 2000, A41 (defending Bush on the ground that Democrats “turned this into a lawyers’ contest” and that the Court averted “a true constitutional crisis”); David G. Savage & Henry Weinstein, “‘Right to Vote led Justices to Ruling,” Los Angeles Times , Dec. 14, 2000 (reporting the views of lawyer Carter Phillips, who defended the result but not the reasoning of Bush , and of law professor John Yoo, who agreed with the result but was “surprised” by the equal protection rationale subscribed to by the five conservative Justices); Fred Barbash, “A Brand New Game,” Washington Post , Dec. 17, 2000, B1 (conceding that the decision may have been “poorly reasoned” or attributable to “partisan motives,” but denying that this makes it “illegitimate,” and noting that Democrats frequently have embraced judicial activism). Few conservative commentators have undertaken the onerous burden of defending Bush on its merits. See, e.g., Michael W. McConnell, Two-and-a-Half Cheers for Bush v. Gore , U. Chi. L. Rev. (forthcoming 2001).