Law profs debate Gore v. Bush

One compares it to a military coup. Another likens it to the decision to imprison Japanese in work camps during World War II. But for many constitutional law professors, the longest lasting implication of the Bush vs. Gore U.S. Supreme Court decision may not be Bush's victory, but instead the skepticism toward the court system that the decision has evoked in students. Two months after the 5-4 decision that led to the inauguration of George W. Bush as the nation's 43rd president, debate continues as to the legality of the decision and the implications it has for teaching about the court and the law. And now Penn Law professors are dealing with the impact the case will have on their instruction. "When we teach constitutional law, it will be a little more difficult to describe the court as apolitical," Penn Law Professor Frank Goodman said. "It's going to be harder to sell that spiel." "The students will be a little more skeptical," he added. "I would think that that is a bad blotch on the history of the Supreme Court," Penn Law Professor Ed Baker said. "People expect the court and the court claims to be a legal institution, not a body deciding politically [according to] what they want." "Even though they have different political philosophies, most people expect that judges attempt to give a legal apolitical interpretation of the Constitution," Baker noted. Baker was among the many law professors who deemed the Court's action as lawless. In a January issue of The New York Times, 660 professors from about half of all American law schools took out an advertisement deriding the decision. "The decision was so far away from what any constitutional interpretation would justify that one can't credit it as any serious attempt to interpret the Constitution," Baker said. "What seems to be clear is that the method used was improper and was basically a power grab on the part of the court." Professors said that they were not entirely surprised by the decision, but that students would be increasingly doubtful of the supposedly nonpartisan court. "We try to persuade them that the Supreme Court is not a third branch of Congress, and now it is going to be a lot more difficult," Goodman said. Goodman noted that the decision was highly partisan, especially due to the fact that the judges were essentially deciding who would succeed Republican Justice Sandra Day O'Connor, who plans to retire soon. Bush's election ensures a continued Republican majority. Although Baker said the decision is causing increased criticism of the Supreme Court, he noted that professors, like the justices involved, want to put the decision behind them. Penn Constitutional Law Professor Kim Scheppele compared the system to a trauma victim who wants only to return to normalcy. "The justices themselves are trying to downplay the political dimension of the decision," Goodman said, echoing Scheppele's sentiment. "Wounds within the court are healing -- whether wounds among legal academia are healing is less clear." These wounds are the result of a decision that is difficult to defend to students from a legal standpoint, Scheppele said in an e-mail statement, adding that the decision was based on a shaky argument of equal protection of voters by the Constitution. In that decision, Scheppele said, the court essentially created a radically new law. "The election cases and the associated drama has already been sealed off from business as usual, which really goes on as if that never happened," Scheppele wrote. "And that includes most of the teaching of constitutional law as well."