This argument only makes sense if the justice had already concluded that the Texas governor was entitled to be president. A more logical, linear thinking process would suggest that all the disputed votes be counted to avoid harm and remove doubt for whomever was elected. Thus, the majority's argument that the Florida Supreme Court violated the U.S. Constitution's 14th Amendment's equal protection clause and due process provided the legal logic for the decision. Such an untested prophecy should not decide the presidency of the United States. Be that as it may, elite theory contends that policy decisions may be viewed as the preferences and values of a governing elite.
Elites actually shape mass opinions on policy questions more than the masses shape elite opinion.
Judges clearly belong to the elite class and, as Justice Oliver Wendell Holmes said nearly a century ago, judges also make law. What is surprising in Bush v. Gore is not that Supreme Court justices decided the case. Elite, liberal Justices Breyer and Souter felt that voting standards could be implemented and the disputed ballots recounted by Dec. 18. They would have sent the case back to the Florida Supreme Court with instructions to establish a consistent method for evaluating the many different ballots that had caused the problems. Yet, the counting of unresolved ballots would likely have made Gore the winner.