ACSBlog: The Blog of the American Constitution Society

In yesterday's Washington Post, ACS member Garrett Epps argues that allowing the courts to be involved in deciding the upcoming election could have critical effects on Americans' respect for the institution, and that such decisions can and should be made through political processes instead. Epps writes "I am convinced that the negative reaction to Bush v. Gore took the court's majority by surprise. Working in isolation, with almost no time for reflection, these conscientious but somewhat naïve judges thought they were saving the country. In fact, they short-circuited the political process and did serious damage to the American sense that "we the people" are the rulers and not the ruled. And the dire emergency the justices may have thought they were curing was largely a mirage. Like much of democratic government, the Florida recount was by turns crass, vulgar and confusing -- but it was on its way to producing a victor without judicial help." Epps lays out the political process by which the Florida controversy would have been solved, had the Supreme Court not stopped the recount and made their own decision. He believes such processes are properly placed in the political branches in order to provide direct accountability for voters, and maintain the legitimacy of the Court. "The question for the nation and the court is what to do if, 10 days from now, the returns from one or more crucial states are inconclusive again."