The fearsome litigation bred by Bush v. Gore.

Jeffrey Rosen, in TNR, describes a nightmare scenario of post-election litigation tapping into that "inexhaustible font of rhetoric and novel lawsuits" that is Bush v. Gore. Rosen resurrects Felix Frankfurter to warn us about courts entering "the political thicket." Wander in there and you'll never get out! Yet Rosen seems mired in the politics of Bush v. Gore itself: He puts a lot of effort into chiding the Supreme Court for getting involved in that particular political controversy. See, now there's hell to pay! Aren't you sorry?

But it wasn't possible for the U.S. Supreme Court to have made a decision to avoid turning the 2000 election into a legal matter. The Florida state courts had already taken hold of the controversy. The decision the U.S. Supreme Court had to make was whether to leave the outcome of the national election in the hands of one state's judges or to take it into their own hands.

Rosen is right that Bush v. Gore is now a precedent that lawyers will use to fight for the goals of their clients, and there is, of course, potential to weigh down American elections with far too much litigation, but it will be the job of the courts to make sensible decisions refraining from excessive involvement in politics. Surely, there are some political matters--such as the gross malapportionment of legislative districts that Frankfurter would have left intact--that deserve judicial scrutiny. The fear that if courts do anything they will have to do everything is alarmist and overstated.