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Copyright (c) 2001 Georgetown Law Journal
Georgetown Law Journal

ESSAY: Renormalizing Bush v. Gore: An Anticipatory Intellectual History

November, 2001

90 Geo. L.J. 113


Mark Tushnet*


One immediate reaction to Bush v. Gore, 1 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. 5 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 reservations, 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 are heavily invested in insisting that there is a real difference between law and politics. 9 They ...
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