BY RANDALL JACKSON
For much of America, the events surrounding last year’s presidential election seem a distant memory. Yet on the HLS campus, professors still must face the difficult question of how to address the legal controversy of Bush v. Gore in classes about the courts and constitutional law.
“I think a major question I’ve faced is how one goes about incorporating the discussion of Bush v. Gore into my classes, while recognizing that there is a serious potential for the court’s reasoning in the case to be limited to the events of the case,” said Prof. Heather Gerken, who is teaching Law of Democracy this term. “Another big question that is tied to that is how one simultaneously avoids promoting cynicism in students, which I see as a huge danger and a really undesirable outcome. On one hand you have this extraordinary Equal Protec-tion ruling with lots of potential implications, but it’s hard for me to imagine the court extending their reasoning in Bush v. Gore to other cases,” she said.
Prof. Laurence Tribe ’66, who figured prominently in the election controversy, said that he has not severely altered the content of his Constitutional Law class as a result of the election. Tribe said, however, that he had made some changes to the organization of the course, particularly in terms of the timing of topics.
“One of the themes of the course is that the Constitution is not to be equated necessarily with the Supreme Court’s view at any one time. In order to make that point clearly I felt it necessary not to begin with constitutional review, but to lead off with some introductory material that led up to the discussion of Marbury v. Madison,” said Tribe.
Tribe suggested that although he viewed Bush v. Gore as an important decision, it was one which needed to be seen in light of a broader picture. “I wanted Bush v. Gore to be put in proper context – specifically that it wasn’t necessarily the Constitution that decided how that case would be resolved, but rather the views of five justices on how the Constitution should be interpreted.”
Ayodele Carroo ’02, a student in Tribe’s class this semester, felt that students’ opinions coming into Constitutional Law hadn’t been overwhelmingly affected by the events surrounding the case. “It may have demystified the Court a little bit in some people’s minds, but it also helped to show just how different people’s perceptions of any particular decision can be in a very real way,” she said. “Professor Tribe asked the class at one point if there were any Bush supporters who felt that the Court had handled the case incorrectly, and there were none,” said Carroo.
Prof. Richard Fallon, who is teaching Federal Courts and Advanced Constitutional Law this semester, expressed a related theme. “It’s important to focus on what [Bush v. Gore] teaches us about how our political views, through complex psychological processes, may color the way we analyze legal issues even when we don’t realize it. I think it’s important to remember that there were two sets of decisions in this case – one by the Florida Supreme Court and one by the Supreme Court, which is the one everybody talks about. Nearly everyone I know who is generally liberal is deeply concerned about what went on in the Supreme Court. Nearly everyone I know who is generally conservative is deeply concerned with what went on in the Florida Supreme Court,” said Fallon.
Fallon suggested that while he didn’t believe that courts typically engage in overtly political behavior, it was important for everyone in the legal community to develop an awareness of the way political views may be coloring legal perspectives. “I began my Federal Courts course with a discussion of the concept of ‘standing’ – how decisions are sometimes covertly political. A lot of my students will be clerking soon and I think it’s important for them to be aware of their own behavior and to discuss how issues will sometimes purport to be doctrinal but will have political subthemes. I’m not sure I wouldn’t have done this anyway, though, since it’s such an important concept to keep in mind,” said Fallon.
Gerken made clear that she “has faith in judges.” In her courses, Gerken hopes to succeed in balancing the need for underlying confidence in the system with an honest discussion of what has occurred. “It’s strange because you have all of these huge potential implications for Bush v. Gore. Applied broadly, it could be one of the biggest voter rights decisions in history. But given the Court’s history in dealing with the Equal Protection clause, it’s just hard to imagine that they will extend this thinking to other cases,” said Gerken.
One thing that remains clear is that the discussion of Constitutional law and how the courts operate is still much broader than any discussion of the impact of Bush v. Gore. Fallon said, “Even as I’ve addressed all of these issues related to and affected by the decision, I don’t think I’ve uttered the actual words Bush v. Gore at all yet this semester.”