But what about Bush v. Gore? Can this case be considered as anything more than a national embarrassment and one that, on its own, created a precedent for the alleged electioneering abused four years later?
Bartley contends that Bush v. Gore was a hard case and that respectable constitutional arguments can be found on both sides. If one is thinking about the case strictly in terms of 'hanging chads' and those other esoteric problems with the paper ballots, then the case would easily be seen as a matter of observable fact running into state election laws and might never have gotten to the Supreme Court. Obviously, then, there was more to it than that. Bartley notes that once the issues were taken to the Supreme Court, then additional factors were brought to light, including "gaps, and ambiguities in Florida law, federal law, and the Constitution" (Commentary 2005, p. 25+).
There was more to this case than that, although the extra facets were not adjudicated; instead, they form the societal context of the case. Commentary notes that they arose "out of controversies concerning core constitutional issues -- the boundaries of personal freedom and the contours of equality under the law" (Commentary, 2005, p. 25+). Commentary was doubtless thinking of the disenfranchisement of those who were personally incapable of properly punching or marking a ballot, people of any race who were careless or confused. However, at the time, there was also a great deal of information reported by the media contending that civil rights of protected groups, in this case, African-Americans, had been violated by various illegal polling place and/or police activities. Indeed, the common wisdom of those who supported...
However, their action was, as in Brown v. Board of Education and Roe v. Wade, arguably both a symptom of and contributor to the national social mood of the times. The minority the court was considering -- the imperfect ballot markers -- lost the decision.
This can be seen as another case of ignoring stare decisis. Had the Court considered other cases -- even had it considered the decision in Brown v. Board of Education, the decision might have been in favor of those
minorities, a situation that might well have had the serendipitous effect of redressing the grievances of the 'other minorities,' at least in spirit. As it was, the Bush v. Gore decision bears much greater resemblance to the Plessy V. Ferguson decision than to Brown v. Board of Education or Roe v. Wade.
In this foursome of cases, two are reactionary, attempting to hold onto some imaginary era in which it was possible for some people to dictate what was allowable for other people. Plessy v. Ferguson did it on a relatively homely level; Bush v. Gore took equal protection back several steps. Brown v. Board of Education and Roe v. Wade, on the other hand, may have been just slightly ahead of their time, infinitely more daring in their lack of interested in stare decisis, and good avenues for
changing society at the same time.
Works Cited
Abramsky, Sasha. "Did Roe V. Wade Abort Crime?" The American Prospect 1 Jan. 2001: 25. Questia. 26 June 2005 http://www.questia.com/.
Courts, Presidents and Precedents." National Review 18 July 1986: 17+. Questia. 26 June 2005 http://www.questia.com/.
Has the Supreme Court Gone Too Far? A Symposium." Commentary Oct. 2003: 25+. Questia. 26 June 2005 http://www.questia.com/.
Kapla, Morton a. "Tribe and Scalia on the Constitution: A Third View." World and I Apr. 1999: 310. Questia. 26 June 2005 http://www.questia.com/.
Paulsen, Michael Stokes. "Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?" Yale Law Journal 109.7…
