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Antonin Scalia and American ConstitutionalismThe Historical Significance of a Judicial Icon$
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Edward A. Purcell, Jr.

Print publication date: 2020

Print ISBN-13: 9780197508763

Published to Oxford Scholarship Online: June 2020

DOI: 10.1093/oso/9780197508763.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 16 June 2021

An Ignored Jurisprudence: Bush v. Gore

An Ignored Jurisprudence: Bush v. Gore

(p.183) 8 An Ignored Jurisprudence: Bush v. Gore
Antonin Scalia and American Constitutionalism

Edward A. Jr. Purcell Jr.

Oxford University Press

This chapter examines Justice Antonin Scalia’s actions in the notorious case of Bush v. Gore. There, five conservative justices voted to stop the recount of the Florida vote in the election of 2000 and make George W. Bush president. The chapter outlines the position of the justices and focuses on the two opinions that Scalia joined, a per curiam for seven relying on the Equal Protection Clause and a concurrence by Chief Justice William Rehnquist for three of the seven based on Article II. The chapter argues that both of those opinions contradicted virtually all of Scalia’s jurisprudential principles, including those involving standing and the political question doctrine. Further, it argues that both of those opinions—together with the solo opinion Scalia wrote supporting a stay of the Florida recount and certain other contextual factors—demonstrate that Scalia’s actions in the case were deeply personal and inspired by his intense desire to see the Republican candidate win the election.

Keywords:   Bush v. Gore, election of 2000, William Rehnquist, political question, Equal Protection Clause, standing, Article II, stay, originalism

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