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

51  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  preferred George W. Bush for president. 225 Perhaps some attitudes will change if Bush proves to be a particularly good or bad president, 226 but I doubt it. Moreover, unlike with regard to issues like the death penalty, the Supreme Court almost certainly will enjoy no future op- portunities to revisit the issue in Bush , as it did in Furman , and thus to fix its “mistake.” Once elected president, Bush cannot be “unelected.” Finally, from the “basket of issues” perspective, the Rehnquist Court might survive Bush v. Gore reasonably unscathed, because the remainder of the Court’s constitutional jurisprudence has been such a political grab bag of results. Bush might have enraged Democrats even more had the conservative majority that ensured Bush’s election been consistently writing conservative values into the Constitution. But it hasn’t. While the Rehnquist Court arguably has been the most activist in history, its activism does not manifest a consistent political valence. In recent years, liberals generally have won on issues in- volving abortion, school prayer, gender discrimination, and freedom of speech. 227 Conservatives, on the other hand, have triumphed on issues such as affirmative action, minority voting districts, public aid to parochial schools, federalism, the death penalty, and (usually) cri- minal procedure. 228 Indeed, in the term that immediately preceded Bush , the Court issued a series of important constitutional rulings that were noteworthy mainly for the political evenhandedness of the results. 229 Liberals won on abortion rights, access to abortion clinics, school prayer, and the continued vitality of Miranda . 230 Conservatives 225 See, e.g., Michael W. McConnell, “A Muddled Ruling,” Wall Street Journal , Dec. 14, 2000, A26 (“Many of the vice- president’s supporters will continue to believe–probably to their graves–that their man would have won if only they had been given more time.”). 226 See, e.g., Kaiser, supra note __ (reporting former White House counsel A.B. Culvahouse’s view that if Bush is a suc- cessful president, “lots of people” may end up approving the Court’s ruling). 227 See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (abortion); Lee v. Weisman, 505 U.S. 577 (1992) (school prayer); United States v. Virginia, 518 U.S. 515 (1996) (exclusion of women from Virginia Military Institute); Texas v. Johnson, 491 U.S. 397 (1989) (flag burning). 228 See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (affirmative action); Shaw v. Reno, 509 U.S. 630 (1993) (minority voting districts); Agostini v. Felton, 521 U.S. 203 (1997) (public aid to parochial schools); United States v. Lopez, 514 U.S. 549 (federalism); McClesky v. Kemp, 481 U.S. 279 (1987) (death penalty); Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety checkpoints permissible under the fourth amendment). 229 See, e.g., Edward Walsh, “An Activist Court Mixes its High-Profile Message,” Washington Post , July 2, 2000, A6; Kath- leen M. Sullivan, “A Court Not Easy to Classify,” New York Times , June 29, 2000, A31 (“[I]n the rich and important term that just finished today, the justices defied any simple political typecasting.”). 230 Stenberg v. Carhart, 530 U.S. 914 (2000) (abortion); Hill v. Colorado, 530 U.S. 703 (2000) (abortion clinics); United States v. Dickerson, 530 U.S. 428 (affirming Miranda ); Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) (school prayer);