Judging the Supreme Court: Construction of Motives in Bush v. Gore.(Book review)

Judging the Supreme Court: Construction of Motives in Bush v. Gore. By Clarke Rountree. East Lansing: Michigan State University Press, 2007; pp. xvi + 510. $79.95 cloth.

It has been almost two decades since Gerald Wetlaufer (1990) argued that the rhetoric of law "relies, above all else, upon the denial that it is rhetoric that is being done" (p. 1555), that courts depend on the myth that their decisions aren't rhetorical creations but rather are the product of deductive application of the law to the facts. In that time, there has scarcely been a more notorious--or arguably transparent--case study of this myth than the U. S. Supreme Court's Bush v. Gore decision, which effectively ended the 2000 presidential campaign more than five weeks after election day. In Judging the Supreme Court, Clarke Rountree uses a Burkean lens to construct his analysis of the "judicial myth" as well as Bush v. Gore and the events surrounding it.

Rountree argues that for a decision to be consistent with the judicial myth, it must "embody proper judicial motives" (p. 5). Drawing upon his previous works, Rountree's first chapter sets forth his framework, grounded in Kenneth Burke's pentad, for analyzing judicial motives. Since scholars of law, history, and political science are likely to be a significant portion of this book's audience, it is useful that the elements of the pentad and applications of pentadic ratios to judicial rhetoric are well explained for newcomers to this form of analysis. The purpose-agent ratio, for example, is explained by illustrating how a plaintiff (agent) must have standing (purpose) in order to pursue a lawsuit. The second chapter summarizes the events leading up to the Bush v. Gore decision, including the media's election-night confusion over who won Florida, the subsequent legal maneuvering of the two candidates, the two decisions of the Florida Supreme Court, and the U.S. Supreme Court order staying the Florida recount, issued the weekend before Bush v. Gore. Rountree offers an interesting pentadic analysis of stay orders generally, and this one in particular, along with Justice Stevens's dissent, illustrating how the Scalia-authored stay order foreshadowed the election-ending decision three days later.

The next two chapters consist of Rountree's close examination of the majority opinion, Justice Rehnquist's concurrence, and each of the four dissenting opinions. Rountree focuses on how each opinion construes the acts of others. For example, he unpacks the majority's choice to frame Florida Secretary of State Katherine Harris as "passive and law-abiding" (p. 34) and the Florida Supreme Court as "foolish" (p. 49). Pentadic criticism risks being cookie-cutter criticism, much like neo-Aristotelianism, but Rountree avoids that pitfall. The pentadic ratios are not applied formulaically, but rather are used only to the extent that they aid Rountree's analysis. Justice Ginsburg's dissent used the scene-agent ratio in arguing that the U. S Supreme Court has traditionally deferred to the highest court of a state as the final arbiter of the meaning of that state's statutes and the scene-act ratio in explaining why the context of a case cited as precedent is so different as to make it inapplicable. Other parts of Burke's corpus are also used to provide valuable insights into judicial rhetoric, such as the use of the Burkean notion of consubstantiation in explaining the power of citing precedent. Rountree's criteria for judicial opinions, what he calls "the ideals of judicial action," are "speaking to the past, present, and future by following the law; providing justice in the instant case; and providing sound principles ...