HOW SERIOUSLY CAN WE TAKE THE POSSIBILITY OF DISINTERESTED LEGAL ANALYSIS?
It is my experience that American constitutional lawyers, whether practi-tioners, academics, or judges, seem to feel relatively few genuine constraints in the kinds of arguments they are willing to make or endorse. It is, I am confident, harder to recognize a “frivolous argument” in constitutional law than in any other area of legal analysis. Almost all constitutional analysts, as a matter of brute fact, seem committed to a de facto theory of “happy endings,” whereby one’s skills as a rhetorical manipulator of what my colleague Philip Bobbitt terms the “modalities” of legal argument21 are devoted to achieving satisfying results. One of the things that some of us learned on December 12, 2000, was that five Republican Justices22 — that is, Justices with a pre-judicial affiliation with the Republican Party who were appointed by Republican Presidents — were willing to do whatever it took to shut down the electoral process in Florida in a context where that meant the inevitable occupation
