CHAPTER Ten
The American Legal System and the Courts

Take a Position

Read the "What's at Stake?" in the text, 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 chapter, 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?