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  48 itself from the school desegregation controversy until after the civil rights movement had caught the country up with the Court. 212 Likewi- se, the New Deal Court got itself into trouble by invalidating a dozen federal statutes in no less than eighteen months. Finally, a series of Marshall Court decisions between 1816 and 1824 213 made the Court so unpopular in so many states that a genuine risk of congressional retaliation arose, either in the form of a statute curtailing the Court’s appellate jurisdiction or a constitutional amendment fundamentally altering the judicial review power. 214 Most scholars believe that the Marshall Court engaged in a strategic retreat during its final decade, in order to blunt these retaliatory efforts. 215 These seem to me the most important factors influencing how particular decisions impact the Court’s long term standing. Evaluating the likely significance of Bush v. Gore according to these variables is straightforward, though necessarily no less impressionistic than identi- fying the relevant factors in the first place. Half the country–the half that voted for Al Gore–thinks the re- sult in Bush v. Gore was wrong; many think it was egregiously so. 216 Some Republicans acknowledge (especially in private) that the Court’s decision was bad law, but generally they are not unhappy with the result. 217 Thus, if I am right that the Court’s long-term legitimacy de- pends more on whether people approve its results than on the qua- lity of its legal reasoning, roughly half the country will approve and 212 On the Court’s absenting itself from the school desegregation controversy, see, e.g., J. Harvie Wilkinson, From Brown to Bakke: The Supreme Court and School Integration 1954-1978 (1979), ch.5. The Court did intervene, but only in extreme circumstances. See Cooper v. Aaron, 358 U.S. 1 (1958) (defiance of Brown , followed by school closures); Bush v. Orleans Parish Sch. Bd., 365 U.S. 569 (1961) (summarily affirming invalidation of state statute authorizing closure of any school ordered to integrate). The Court only reentered the fray as the civil rights movement reached its pinnacle. See Goss v. Board of Education, 373 U.S. 683 (1963) (invalidating minority-to-majority student transfer policy); Griffin v. County Sch. Bd., 377 U.S. 218 (1964) (invalidating school closures). 213 See, e.g., Osborn v. Bank of United States, 22 U.S. 738 (1824); Green v. Biddle, 21 U.S. 1 (1823); Cohens v. Virginia, 19 U.S. 264 (1821); Sturges v. Crowninshield, 17 U.S. 122 (1819); Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). 214 See, e.g., Warren, supra note __, ch. 17; Dwight Wiley Jessup, Reaction and Accommodation: The United States Supreme Court and Political Conflict 1809-1835, ch. 5 (1987). 215 See, e.g., Jessup, supra note __, chs. 6-7; R. Kent Newmyer, The Supreme Court Under Marshall and Taney 84-88 (1968). The leading cases in support of the retreat hypothesis are Hawkins v. Barney’s Lessee, 30 U.S. (5 Peters) 457 (1831); Providence Bank v. Billings, 29 U.S. (4 Pet.) 514 (1830); Willson v. Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827). 216 See Richard Morin & Claudia Deane, “Public Backs Uniform U.S. Voting Rules,” Washington Post, Dec. 18, 2000, A1 (reporting an opinion poll revealing that fifty percent of the public approved of the Supreme Court decision and forty- eight percent disapproved); Montgomery, supra note __. 217 See sources cited supra note __.