Take a Position

Read the "What's at Stake?" in this chapter, on the Bush v. Gore decision. The verdict raised questions about the Supreme Court as a political institution, specifically whether it is above politics and whether it is a lawmaking institution. We've also seen questions regarding judicial lawmaking when, in the text, we discussed judicial activism vs. judicial restraint.

Take a position: Should justices engage in judicial activism or judicial restraint?

As you develop your argument, answer the following questions:

What was the Court's reasoning behind the Bush v. Gore decision? Why did the dissenters disagree? How many judges made unexpected decisions? In other words, which judges took a side that went against their usual judicial approaches? Why do you think that happened in this case?

Do you see evidence of judicial activism or judicial restraint in the verdict? Did the Court's decision amount to judicial lawmaking? Was something else at stake here?

Why would some people argue that it is not necessarily problematic that judges engage in policymaking? Are there times when we would want the courts to be policymakers?

What could be some problems of "judicial lawmaking?" Do any of those problems relate to this case?

Materials developed by Matthew J. Streb, Northern Illinois University