90 Geo. L.J. 113 (2001-2002)
Renornalizing Bush v. Gore: An Anticipatory Intellectual History

handle is hein.journals/glj90 and id is 135 raw text is: ESSAY
Renormalizing Bush v. Gore: An Anticipatory
Intellectual History
MARK TUSHNET*
One immediate reaction to Bush v. Gore,' on both sides of the political
spectrum, was to think it a narrowly partisan decision. The decision's obvious
effect was to award the Presidency to George W. Bush, and it was difficult to
avoid inferring that the five-Justice majority intended to accomplish the natural
consequences of its actions. So, the immediate reaction I have described was
readily translated into the thought that Bush v. Gore demonstrated, much to the
dismay of many, that critical legal studies arguments, or at least legal realist
ones, were correct.2 Critical legal studies had been widely reported to be, in
Duncan Kennedy's words, dead, dead, dead.,3 Bush v. Gore seems to have let
critical legal studies arise like Lazarus from the grave.4
There are reasons, though, that the demise of critical legal studies had been
widely reported.' The critical legal studies claim that law, properly understood,
was indistinguishable from politics, properly understood, was quite threatening
to the self-understanding of legal elites.6 Justice Robert Jackson once referred to
the mental reservations one has in teaching of Santa Claus or Uncle Sam or
Easter bunnies or dispassionate judges.,7 It is one thing to have those reserva-
tions, another to be reminded of them, and yet something else to be hit over the
head with the realization that judges are not always dispassionate.8 Legal elites
* Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center. I
received valuable comments on this Essay's argument from Michael Dorf, Richard Friedman, Steve
Ross, L. Michael Seidman, and participants in the Georgetown/PEGS/Maryland Discussion Group on
Constitutional Law, March 2001.
1. 531 U.S. 98 (2000) (per curiam).
2. I received two e-mails suggesting this conclusion from mainstream liberal constitutional theorists.
One, with the subject line Taking the Constitution Away from the Courts, had as its message the
single word, Uncle. The other said, Everyone has a breaking point, and appended an op-ed that the
sender had written, which was highly critical of the Court's decision to stay the recount.
3. See Robert C. Ellickson, Trends in Legal Scholarship: A Statistical Study, 29 J. LEGAL STUD. 517,
543 n.21 (2000) (referring to a statement by Professor Kennedy made in 1996).
4. For reasons that should be obvious, I do not want to force this metaphor too much.
5. I should note my belief that, as with those of Mark Twain's death, the reports of critical legal
studies' demise had been greatly exaggerated. See OxFoRD DIcrnONARY OF QUOTATIONS 554 (3d ed.
1979).
6. I believe that this threat, rather than the purported inability of critical legal studies' adherents to
devise reformist programs, was the source of the reports of critical legal studies' demise. Cf. Richard
Michael Fischl, The Question That Killed Critical Legal Studies, 17 L. & Soc. INQuIRY 779 (1992)
(asserting that, in its critics' eyes, critical legal studies failed to articulate a reform program).
7. United States v. Ballard, 322 U.S. 78, 94 (1944) (Jackson, J., dissenting).
8. One important criticism of critical legal studies was that its claim about the equivalence of law
and politics could not be sustained unless the advocate of critical legal studies could identify a decision

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