Bush has cited conservative justices Antonin Scalia and Clarence Thomas, both staunch opponents of abortion rights, as role models for high court nominees. That was the despairing comment of one law professor after he read the per curiam opinion that spoke for five members of the Supreme Court. His reaction, widely shared among law teachers, points to the real failure of the decision that gave the presidency to George W. Bush. The problem is not so much that the court intervened in politics. It is that the majority's stated reasons for its decision were so unconvincing.
Courts have an obligation to persuade.
Their power is legitimate only if they give reasoned arguments for what they do. By that standard, the decision in Bush v. Gore was a dismal failure. The 5-4 majority decided that disparate standards for recounting ballots in different Florida counties denied voters the equal protection of the law and that there was no time to carry out a recount under a proper, single standard. The Supreme Court itself, by stopping the recount on Dec. 9, helped run out the time. But there is a further, even more damaging aspect to the Supreme Court's performance.