Supreme Court nominee Elena Kagan said on Tuesday that a case like Bush v. Gore could very well come before the court again -- a prediction about the judicial future that puts her at odds with other legal experts.
Speaking during the first day of her confirmation hearings, Kagan was asked specifically about positions on the controversial 2000 decision that effectively settled the presidential election and represented -- for many Democrats -- a drastic overreach on the part of the judicial branch.
Kagan has written in the past that the court, in this case, had been affected by the politics and policy preferences of its members. Her argument wasn't necessarily that this was a bad thing. But that sober-minded analysis should conclude that Bush v. Gore was not mere judicial review, as conservatives hold, but a rare instance in which the court probably overreached. Even the majority opinion in that case announced that the ruling was "limited to the present circumstances" and could not be cited as precedent.
So her response on Tuesday -- in which she seemingly invited the court to consider similar cases -- was a bit of a surprise.
I think I might disagree that it is the kind of decision that will never come before the court again. Of course, you're right that it will never come before the court again, but the question of when the court should get involved in election contests and disputed elections is, I think, one of some magnitude that might well come before the court again. And if it did, you know, I would try to consider it in an appropriate way and read in the briefs and listen to the arguments and talking with my colleagues. I think it is an important question and a difficult question about how an election contest that at least, arguably, the political branches can't find a way to resolve themselves, what should happen and whether and when the court should get involved. It is hard to think of a more important question in a democratic system. And maybe a tougher one.
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