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Outlines the constitutional and statutory framework within which presidential elections are conducted in the USA. Provides a brief chronology and an account of the US (Bush vs Gore) presidential election of 2000. The different sections of the chapter are: How We Elect Our President (the constitutional and statutory framework); The 2000 Election and Its Aftermath; The Ground War in Florida; The Butterfly Ballot; ‘Count All the Votes’ — or at Least the Ones That Favour Gore; Bush Goes to Court; The Overseas Absentee Ballots; The Supreme Court's Initial — Unanimous — Decision; and The Supreme Court's Stay (the decision to stop recounting in Florida before even hearing an argument) — looks at other cases in which equal protection has or has not been applied by the US Supreme Court.

Aims to demonstrate that, during the (Bush vs Gore) US presidential election of 2000, by any reasonable standard of evaluation, the majority justices of the US Supreme Court failed to test the US constitutional system in ways that it had never been tested before, and did so not because of incompetence, but because of malice aforethought. Contrasts the prior decisions and writings of the particular majority justices with the opinions that they joined in this case; the dramatic discrepancies found raise troubling questions. Moves from this concrete evidence to a more speculative consideration of what may have motivated these inconsistencies. The different sections of the chapter look first at the decisions of Justice Antonin Scalia, Justice Sandra Day O’Connor, Justice Anthony Kennedy, Chief Justice William H. Rehnquist, and Justice Clarence Thomas. The following speculative sections first ask generally why each justice behaved as they did, and then go on to devote separate sections on the motives of each of the five justices.

Aims to demonstrate that, during the (Bush vs Gore) US presidential election of 2000, by any reasonable standard of evaluation, the majority justices of the US Supreme Court failed to test the US constitutional system in ways that it had never been tested before, and did so not because of incompetence, but because of malice aforethought. Discusses the importance of Bush vs Gore to all Americans, and starts by noting that Bush vs Gore is certainly not the first bad Supreme Court ruling. It looks at some of the other evil, immoral, and even dangerous, decisions made, most of which have been overturned by later courts and condemned by the verdict of history. However, for the most part, the justices who wrote or joined the majority opinions for these terrible decisions were acting consistently with their own judicial philosophies; Bush vs Gore was different because the majority justices violated their own previously declared judicial principles, and in this respect, the decision in the Florida election (recount) case may be ranked as the single most corrupt decision in Supreme Court history. The different sections of the chapter discuss why criticism and accountability are important, some lessons to be learned from Bush vs Gore, the wages of Roe vs Wade (a controversial abortion case that helped to secure the presidency for Ronald Reagan), and changing how justices are selected.

Gives an account of the final decision of the US Supreme Court on the Florida vote in the (Bush vs Gore) US presidential election of 2000. Includes discussion of the deliberations and decisions of the Florida Supreme Court in the case of the recount in that state. The main sections of the chapter are: Imperfect Ballots and the Misuse of the Equal‐Protection Clause; Discerning Intent; The Majority's Curious Use of Precedent to Reach Its Result — the inability of the majority of the Supreme Court to point to any case that supported its questionable interpretation of the equal‐protection clause; Of Fundamental Rights, Equal Protection, and Victims; Limited Circumstances — the statement by the Supreme Court that their consideration was limited to the 2000 US presidential election; The Article II Argument — by the US Supreme Court that the Florida Supreme Court had usurped the constitutional authority of the legislature; and Justification by National Crisis.

This chapter critically examines the most prominent theories which social scientists and legal scholars have developed to explain the role of precedent in constitutional law. It shows that legal variables matter more to the outcomes of cases than social scientists typically acknowledge, but less than many legal scholars claim. Nor, for that matter, have legal scholars been able to dismiss altogether the relevance of external factors to constitutional decision making, including the justices' personal attitudes about constitutional law and policy preferences.

This chapter examines the multiple factors (ignored by most social scientists and legal scholars) limiting the path dependency of precedent—or the extent to which precedent forecloses or mandates outcomes—in constitutional law. These factors help to explain an essential dynamic in constitutional law, the golden rule of precedent: justices and other constitutional actors must demonstrate respect for the precedent of others or risk having others not respect theirs. The golden rule of precedent explains why precedent generally may matter in constitutional law but particular precedents may not constrain constitutional decision making very much.

This chapter examines the relationship between authoritarianism, democracy and the emergence of Supreme Court independence in Mexico. It presents three mechanisms to explain why party hegemony meant unrestrained rule by the president; strong dominance of the president over the Supreme Court; and the absence of a rule of law. These are: a flexible constitution that could be modified by the power it was supposed to restrain; the president’s unilateral control of nominations and dismissals; and constitutional rules that delegated insufficient constitutional powers to the Supreme Court to interpret the constitution.

This chapter provides a detailed overview of the Supreme Court's handling of precedent from the Jay Court through the Rehnquist Court. It examines the principal patterns in the justices' approach to precedent, particularly the different tests they have used to reevaluate their precedents. Moreover, it discusses some basic data with respect to the Court's overruling of precedent, and concludes with an examination of the many ways in which the justices weaken precedents without explicitly overruling them.

This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into the federal Constitution's 14th Amendment so as to be applicable to the states. United States Supreme Court interpretations of federal constitutional rights are not binding on state court interpretation of identical or similar state constitutional rights, but state court divergence under these circumstances can raise questions about its legitimacy. A number of questions arise in this context, including for example the proper sequence of arguments, which constitution's rights guarantees should be argued first by counsel, and analyzed first by the state court. The most substantial methodology issue is whether state courts should develop criteria to guide them in deciding whether to interpret identical or similar state constitutional rights to be more protective than the federal analog. The criteria approach is analyzed in some depth, utilizing examples of the use of this methodology in a number of states. The chapter criticizes the use of the criteria approach based on a number of factors that make state court enforcement of state constitutional rights different from the United States Supreme Court's enforcement of the federal bill of rights. The United States Supreme Court's interpretation of federal constitutional rights guarantees is therefore not presumptively correct for the interpretation of state constitutions. The chapter also discusses briefly several other methodological problems, including the direct right of action for money damages under state constitutions, state action, and substantive due process and economic regulation.

This chapter examines the relatively rare, though highly significant circumstances in which precedents are practically immune to reconsideration or reversal. After reviewing the basic features that super precedents share, it examines whether specific precedents, such as Roe v. Wade, have these features. It concludes with an examination of the ramifications of super precedent for both constitutional theory and Supreme Court selection.

This chapter suggests that precedent is often discounted as a source in constitutional decision making because it is usually understood narrowly as judicial decisions. But it shows that a broader definition of precedent encompasses nonjudicial precedent (any of the past constitutional judgments of nonjudicial actors which judicial or other authorities seek to invest with normative power). It shows how nonjudicial precedent is important not only to courts, but to nonjudicial actors.

Presents the author's strong opinions on the ending of the 2000 US presidential election. Starts by pointing out that the five justices who ended the 2000 election by stopping the Florida hand recount have damaged the credibility of the US Supreme Court, and that their lawless decision in Bush vs Gore promises to have a more enduring impact on Americans than the outcome of the election itself. The USA accepted the election of George W. Bush, as it must under the rule of law, but the unprecedented decision of the five justices to substitute their political judgement for that of the people threatens to undermine the moral authority of the high court for generations to come — for the Supreme Court consists of only nine relatively unknown justices with small staffs, and it has wielded an enormous influence on US history. The majority ruling in Bush vs Gore has marked a number of significant firsts in American history; these are outlined and it is noted that there is now a widespread loss of confidence that reaches to the highest part of the judiciary, that the Supreme Court decision may well have violated Article II of the Constitution, and, furthermore, determined a presidential election on doubtful equal protection grounds. Attempts to explain the Court's decision and the justices concerned, and establish how the USA has reached the point where five unelected judges could have had so much influence on the political destiny of a nation.

Aims to demonstrate that, during the (Bush vs Gore) US presidential election of 2000, by any reasonable standard of evaluation, the majority justices of the US Supreme Court failed to test the US constitutional system in ways that it had never been tested before, and did so not because of incompetence, but because of malice aforethought. The author states that he is convinced that if it had been Bush rather than Gore who needed the Florida recount in order to have any chance of winning the election, that at least some of the five justices who voted to stop the recount would instead have voted to allow it to proceed. The main sections of the chapter are: Judicial Impropriety; Hypothetical Cases Involving a Supreme Court Decision Regarding a Presidential Election; The Difficulty of Proving an Improper Motive; Academic Defenders of the Majority Justices; Ad Hominem Arguments and Analysis of Motive; and Analysing the Justices’ Motives in Bush vs Gore: A Prelude.

The diffusion of constitutional judicial review over the past half-century has resulted in the emergence of two dominant ‘models’ of review, the American and the European. The European model, called ‘abstract review’, is typically defended as guaranteeing a more complete system of constitutional justice than does the American model, in which the orthodoxy of the ‘case and controversy requirement’ enables judicial – ‘concrete’– review while prohibiting abstract review. In the one paper included in Ch. 6, parts of which were first published by Stone Sweet in 1998, this orthodoxy is used as a reference point to ground a discussion about the essentially abstract nature of all judicial law-making, and to question the extent to which this limitation and the different forms of jurisdiction and modes of review matter; some of these questions are answered with reference to the United States, using Europe as a backdrop. The paper begins by discussing how and under what conditions abstract review of statutes is exercised in America, and then two particular American supreme court decisions, made in the summer of 1997, that invalidated legislation before them after having suspended the application of the statutes pending a ruling on their constitutionality are examined, to show how such abstract review operates in practice. A more general discussion of judicial law-making is then pursued in light of orthodox distinctions between different modes of review, and the last section of the paper concludes that the judicialization of politics proceeds through judicial law-making, which is always a blend of the abstract and concrete review.

Despite opportunities for practice and feedback before making an appearance before the Court, some advocates make errors—everything from strategic errors to mistaking one justice for another. This chapter classifies the types of errors and suggests proper procedures for preparation, capitalizing on the self-reports of successful advocates. It examines the effect of the backgrounds of different types of advocates on their rate of success before the Court.

In this chapter Professor Gerhardt demonstrates that precedents end up influencing and contributing to constitutional law in many ways other than constraint, which is the predominant concern of social scientists who study courts. These multiple functions include educating the public about constitutional law, shaping constitutional discourse in and outside of courts, implementing constitutional values, clarifying constitutional structure and history, resolving particular cases or controversies, and democratizing constitutional law.

This and the following chapters explore the ‘self-image of the state’ in regard to political obligations through analysis of judicial decisions. Examining the reasons that states themselves provide to justify political obligations provides an empirical test of normative theories. Although judicial decisions have no claim to moral truth, the fact that justices regularly argue from certain principles rather than others adds to the plausibility of a theory based on the former and increases the burden of justification for proponents of other principles. Supreme Court justices usually defend their opinions on the basis of statutory or constitutional interpretation and seldom appeal directly to moral principles. However, on occasion they do invoke moral principles to support their opinions, especially in difficult cases. Justices of the US Supreme Court consistently ground obligations on protection that individuals receive from society. The most likely basis of these ‘reciprocal obligations’ is a principle of fairness, as expressed most notably in Arver v. U.S., the most important of the 'Selective Draft Law Cases'.

Copyright law's potential for abridging speech has long been recognized in United States case law, legislation, and commentary. Because of copyright, speakers are often unable effectively to convey their message and audiences are deprived of valuable expression. But courts have almost never entertained First Amendment defenses to copyright infringement claims. They have held that copyright's internet “free speech safeguards,” including fair use and the idea/expression dichotomy, provide adequate protection for free speech.

This chapter argues that courts should apply the First Amendment to cabin copyright holder prerogatives where necessary to protect speech. It then sharply criticizes the Supreme Court's rejection of a First Amendment challenge to the Copyright Term Extension Act in Eldred v. Ashcroft. Yet as the chapter notes, Eldred nevertheless suggests a couple of ways in which courts could reinvigorate copyright's internal free speech safeguards in light of First Amendment strictures.