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

17  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  Clause that makes it impossible to conduct elections can be a sensi- ble one; the majority’s rationale in Bush does just that. The Court’s equal protection rationale was so novel and far-fe- tched that Bush’s lawyers came exceedingly close not even bothering to raise it. 36 When they did, moreover, it was treated very much as an afterthought, receiving less than two sentences of attention at the very end of a forty-five page brief in the Florida Supreme Court. 3377 I do not mean to suggest that a lawyer’s failure to raise a particular legal argument, or her decision to raise it almost as an afterthought, proves that the argument is a bad one. Lawyers, like everyone else, sometimes make mistakes and miscalculations. Still, there is a sense in which the ex ante calculation of lawyers as to what qualifies as a good legal argument is more revealing than the Court’s post hoc determination. The Supreme Court enjoys such immense prestige that the conclusion by a majority of Justices that “x” is a good legal argument almost conclusively proves it to be so. 38 Yet, unless we are to stipulate that the Court is not only “final” but also “infallible,” 3399 it must be that the Justices occasionally vindicate bad legal arguments. Because of this tendency of Supreme Court decisions retrospectively to validate the arguments upon which they are based, the ex ante judgments of lawyers–at least highly proficient ones, possessed of adequate incentives to raise all credible arguments–may be more reliable indicia of what counted as a good legal argument at a parti- cular point in time than are the Court’s post hoc determinations. In this same sense, the nearly-universal conclusion of legal academics and political pundits, before the Supreme Court granted review on the second go-round in Bush , that no serious federal question existed indicates how far-fetched the ultimately victorious equal protection Application of Law 164-70 (tentative ed. 1958); Wechsler, supra note __, at 11-12, 15-17. 36 See James V. Grimaldi & Roberto Suro, “Risky Bush Legal Strategy Paid Off,” Washington Post, Dec. 17, 2000, A32 (noting that the equal protection argument was “initially thought so weak” that Bush’s lawyers thought it did not raise a substantial federal question). See also David Von Drehle, “In Florida, Drawing the Battle Lines,” Washington Post , Jan. 29, 2001, A1 (noting serious divisions within the Bush camp and among Republican lawyers more generally as to whether the equal protection argument was even worth raising). 37 See Amended Brief of Appellees, Gore v. Harris (Supreme Court of Florida, Case No. SC00-2431), p. 45. See also Brief of Respondents, Bush v. Gore , 35 (noting that petitioners raised their equal protection challenged to standardless recounts in just “one throwaway line” in the state supreme court). 38 See, e.g., Michael Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional “Interpretation,” 58 S. Cal. L. Rev. 551, 566 (1985) (“[Just] about any choice a majority of the Supreme Court is likely to make would probably fall within [the] boundary [set by] accepted canons of judicial behavior, even in conjunction with the constitutional text.”). 39 See Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring).