I’ve tended toward the view that the Supreme Court should have left the dispute to the political branches–the Florida legislature and the Congress. But I’ve just read an article by Peter Berkowitz and Benjamin Wittes in Villanova Law Review that has almost persuaded me to change my mind–and at least made the Court’s decision seem more reasonable. Berkowitz and Wittes set out to argue against Laurence Tribe, whom they regard as the best of the critics of the decision. They do a very effective job of taking his case apart. They don’t try to claim that the Constitution commanded Bush v. Gore and excluded all alternative resolutions, but merely say that the decision was reasonable and one of several courses that the Constitution left open.

Their case does depend, at a crucial point, on a modern conception of judicial review that most people hold and few people examine. That conception assumes a default rule that the courts are supposed to enforce the Constitution, with limited exceptions for, e.g., “political questions.” If you don’t accept that view of judicial review, then their account is less plausible. But the vitriol directed at the decision by people who do accept it is still overwrought.