Did the Supreme Court come out in Bush v. Gore? Queer theory on the performance of the politics of shame.

Did the Supreme Court come out of the political closet in Bush v. Gore? By reading the opinion in Bush v. Gore as parallel to an open secret in a classic coming-out narrative, I question the Supreme Court's straight-faced insistence that their work is legal not political. With tongue firmly in cheek, I delineate six aspects of the coming-out narrative, meticulously applying each one to the Court's opinion in Bush v. Gore. Academic queer theory suggests that both the judicial and coming-out narratives are marked by an epistemology of the closet and strong substantive norms that are kept in place by a politics of shame.

But why a queer critique? Queer theory does more than simply unveil the messiness of the supposed purity of the legal/political and heterosexual/homosexual binaries. Yes, coming out is important, but it doesn't signal the end of the struggle. Unlike a Marxist analysis of power and identity that ends with a critical closure, an ironic queer analysis reminds us that there is no tidy resolution of the problem of political power for the Court, the problem of sexual identity for gays and lesbians, the problem of academic identity for queer theorists, and the problem of the academic standing of queer performance. The instability of identity and the persistence of power make happy endings of that sort impossible. Thus, by comparing academic queer theory with Holly Hughes's outrageous queer performance, I suggest that even though academic queer theory may be substantively persuasive, it nevertheless enacts a serious and meticulously reasoned aesthetic that, at least at the level of performance, may be even straighter than that which it seeks to criticize.

In sum, by playfully parodying the Supreme Court's attachment to the law/politics binary, the coming out narrative that has been so central to LGBT studies, and the ultraserious performance of academic queer theory, my aim is to begin to enact and theorize a queer performance in an academic setting. Of course, theorizing my performance in this piece as much as I have (rather than simply drawing the reader into the humor of the parody as he or she reads along), risks drawing me into a straightforward and earnest academic performance. However, that is the bind we (academics) find ourselves in. Parody doesn't promise to solve such a bind. It only promises laughter in the face of the ongoing struggle. And, as both the Stonewall girls and Bakhtin knew, parody may (ironically) be the most "empowering" response to the lack of efficacy that results from the oppression of ridiculously conservative times, such as the one in which we currently find ourselves.

Straightforward Legal Reasoning: The Politics of Shame in the Coming-Out Narrative of Bush v. Gore

While there has been an enormous amount of discussion about Bush v. Gore since the Supreme Court decided the case on December 12, 2000, no one has analyzed the case as a classic coming out narrative. Much, if not all, of the debate about Bush v. Gore has focused on (and reproduced) the conflict between conservatives and moderates on the Court about the correct outcome of the case, particularly whether the recount in Florida should have been allowed to continue. Replicating the split on the Court, conservative scholars have welcomed the Court's decision to halt the recount, characterizing it as based on sound legal reasoning, above the political fray, and hence legitimate, while liberal scholars have characterized it as politically motivated, lawless, and hence illegitimate. Focusing on the conflict that divides them, scholars on both sides of the debate have neglected to notice that they share an important assumption, namely that it is illegitimate and thus shameful for the Court to behave politically, be it openly or otherwise. (2) Though conservatives and liberals may disagree about whether the Court actually was political in Bush v. Gore, closeting and shaming the Court's political behavior seems to be the order of the day.

What would the election controversy of 2000 look like if it were viewed through the lens of queer theory? I argue here that gay and lesbian studies has much to add to the debate about Bush v. Gore, due to its expertise in analyzing closeting and coming out narratives. (3) While this sort of analysis has been done primarily in relation to sexual identity, recently, however, queer theorists have argued that analyzing closeting narratives may be useful for understanding not only gay and lesbian culture and politics but also for understanding legal, cultural, and political discourses more generally. For example, Eve Sedgwick has argued that "the epistemology of the closet" has marked Western conceptual systems at least since the dawn of the twentieth century, even those that seem to have nothing to do with sexuality (1). Michael Warner adds, "[T]he logic of the sexual order is deeply embedded by now in an indescribably wide range of social institutions, and is embedded in most standard accounts of the world" (x). More specifically, I have argued elsewhere that the persistent habit of closeting sexuality in mainstream constitutional theory has had a profound impact on the parameters of scholarly constitutional discourse. (4) I extend this work by analyzing constitutional discourse and judicial reasoning as a coming out narrative through a specific case that seems to have nothing to do with sexuality, Bush v. Gore.

Rather than focusing on the conflict in the Court about the recount, I argue that the opinions in Bush v. Gore parallel a classic gay and lesbian coming out narrative--complete with all the prospects and problems that such a narrative typically entails. Just as gay and lesbian sexual behavior and identity are the focus of the standard coming-out narrative, political behavior and identity are the focus of the Court's coming out. Just as heterosexuality is the default sexuality until one comes out as gay or lesbian, a legal identity is default for the Court until political behavior suggests an alternative. In both cases the default identity is valorized, while the identity that requires outing is typically thought to be undesirable, or aberrant. And, just as homosexuals often strive for the legitimacy that accrues to heterosexuals as a matter of course, judges who are identified as political struggle to regain the legitimacy they enjoyed when their behavior was recognized as legal.

Moreover, I argue that just as gays and lesbians have long struggled with the difficulties associated with both closeting and revealing a purportedly shameful sexual identity, the opinions in Bush v. Gore exemplify a parallel set of narratives in which the Court is struggling to maintain its legitimacy by closeting politics and resisting the shame associated with "coming out" as political. Coming out of the closet has been a central narrative of gay and lesbian life at least since the early 1970s, following the famous Stonewall riots. (5) The closet serves as a metaphor for invisibility, which is largely a reaction to a longstanding assumption that gay and lesbian sexuality is deviant or illegitimate, worthy of ridicule, punishment, and perhaps violence. In this context, the closet offers gays and lesbians a measure of safety in return for keeping sexual identity a secret. It also offers a measure of shame and isolation, as closeted gays and lesbians are taught that it is necessary to hide their sexuality in order to survive physically, personally, and professionally.

In general, the gay and lesbian coming out narrative can be characterized as moving sexual identity from the closeted private sphere into the political, public sphere. Several features characterize the narrative, including drama, passing, and a "moment of truth" in which the shameful identity in question is directly …