JUDICIAL INDEPENDENCE THROUGH THE LENS OF BUSH V. GORE:

Abstract

This article explores lessons about judicial independence that might be culled from the 2000 election litigation. It treats judicial independence as related to the more general practice of providing decision-making insulation to certain policy-making institutions and discusses a variety of political motivations and consequences that might be associated with such a practice. Four points are emphasized and illustrated with reference to the litigation leading to the Bush v. Gore decision. First, the decision to grant independence to a policy-making institution often has as much to do with insulating preferred political agendas from electoral pressure as with ensuring impartial decision-making. Second, independent courts are often supported by other power-holders because they can act as a forum within which contentious political questions may be channeled. Third, even nominally independent decision-makers must assess their political context before choosing politically risky courses of action. Finally, there is no necessary relationship between the degree of a judge’s decision-making autonomy and the likelihood that she or he will engage in good-faith interpretations of the law.