“One dismal morning in January 2001, I strode into a University of Oregon classroom to face 90 fresh-faced first-year law students. I had the unenviable task of explaining the ‘law’ behind Bush v. Gore, decided a month earlier,” Legal Affairs Editor Garrett Epps writes. “It was an impossible task. What could I say to these legal novices, beyond ‘It is not too late to reconsider the life choices that brought you here’?”
“There was no explanation for Bush v. Gore other than the obvious: The Supreme Court took the election away from the people because five of its members didn’t like Al Gore,” Epps continues. “No decision in my lifetime has shown such contempt for the law or so consciously torn a catastrophic hole in the self-governing institutions the Constitution supposedly aims to sustain.”
Even today, a quarter-century after the Court’s worst blunder since Dred Scott, no explanation fits the ruling into the fabric of American constitutional law. Instead, lawyers, scholars, and judges have treated this travesty as a human body treats a foreign object trapped in a wound. It is not incorporated but encysted: surrounded by protective tissue that limits the damage and pain.
“Back in 2001 I would have welcomed the chance to offer my students a careful, clear explanation, written by credible constitutional lawyers, of exactly what was bogus about the decision,” Epps writes. “Yet when a useful rebuttal was most needed, no one stood forth with one.”
In her new book, Fordham University Law Professor Julie C. Suk offers a mechanism that could have filled this vacuum: a “shadow court,” with nine “shadow justices” who publish their own judicial opinions, based on their own lines of constitutional reasoning, which could speak with democratic legitimacy to the nation as a whole.
“Her proposal has many virtues: It is entirely legal, requires no amendment to the Constitution, and might very well help rebuild the national commitment to democratic self-government,” Epps writes.
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