New England School of Law
In this essay, I examine Justice Ginsburg's dissenting opinion in Bush v. Gore, the decision that ended the 2000 controversy over the winner of the presidency. I look critically at Justice Ginsburg's invocation of federalism-based deference to the Florida courts' interpretations of state election law in the recount controversy. I consider also Justice Ginsburg's criticisms of the Court's remedial decision to stop the recounts. Finally, I take up the much-debated question of how to understand Justice Ginsburg's final two words: "I dissent," rather than "I respectfully dissent." My conclusion is that the omission of "respectfully" is pointed, but not for the simple reasons usually given. More significant, I think, is her decision not to point to possible future positive consequences of a decision from which she dissents – a strategy she often has followed in other cases, even ones in which her disagreement with the Court is deep.
Justice Ginsburg's Dissent in Bush v. Gore,
New England Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/506