The action taken in Bush v. Gore by the five conservative Justices on the United States Supreme Court, Bugliosi argued, was not just wrong as a matter of law, but criminal: It was a malem in se, fully intended, premeditated theft of a national election for the Presidency of the United States. Now, as Balkan and Levinson would argue, this seventh, "prosecutorial" response -- that the Court's action was not just wrong but criminal -- is also not available to a devotee of either radical or moderate indeterminacy. Even assuming both criminal intent and severe harm-a wrongful, specific intent to thwart the democratic outcome and a profound harm to democracy-an element of the crime, namely the act, which in this case has to be misstating the law, cannot be borne out. The indeterminacy thesis, if true, logically precludes the moral or legal condemnation of a certain sort of criminality and venality -- that of the official who intentionally and with harmful consequences violates an oath to uphold the law. If the indeterminacy thesis is correct, then there is no demonstrable violation of an oath to uphold the law merely because conclusion X does not follow from premises A and B, and there is no sense in trying to show one. More broadly, there is no sense, given indeterminacy, to holding this particular act of power (either Bush v. Gore itself or any other judicial construction or misconstruction of law) to the light of reason-at least, if by the light of reason we mean the light of legal reason. One can hold up power to the light of power, but nothing much follows morally from doing so, although quite a bit may follow politically, as Stanley Fish has never tired of reminding us.
90 Geo. L. Rev. 215 (2001)
Scholarly Commons Citation
West, Robin, "Reconstructing the Rule of Law" (2001). Georgetown Law Faculty Publications and Other Works. 688.