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abortion in the early months of pregnancy. Or consider the decisions forbidding prayer in public schools. In such cases the constitutional questions are difficult; not surprisingly, the judges, who patrol the Constitution’s boundaries, have reached different conclusions. As the issues divide judges, they divide communities. Supporters and opponents have marshaled strong arguments as to why the other side is wrong. Some feel strongly that the life of an embryo must be protected or that young students who attend public schools should be exposed to religion. Others feel strongly to the contrary. Nonetheless, despite the disagreement and related emotions, despite protests, Americans by and large have adhered to the Court’s decisions. And most opponents, even, for example, opponents of the abortion decisions, look for lawful methods to change unwanted decisions (for example, through constitutional amendment, the president’s appointment power, and consequent erosion of, or change in, current law made by the Court itself). 1
    Focus for a moment on
Bush v. Gore
. The 2000 presidential election was close. The Democratic Party candidate, Albert Gore, won the popular vote nationwide. But the Republican Party candidate, George Bush, after litigation that ultimately reached the Supreme Court, secured Florida’s disputed electoral votes, won a majority of the votes in the Electoral College, and became president of the United States. 2
    That result turned on technical but important constitutional matters. The Constitution provides that the “Person having the greatest Number” of (currently 538) electoral votes for president, “shall be the President, if such Number be a Majority of … Electors appointed.” The Constitution entitles each state to a number of electors equal to the “Number of Senators and Representatives” from that state. Furthermore, it requires each state to select its electors “in such Manner as the Legislature thereof may direct.” Florida’s legislature, like that in almost every state, directed that the presidential candidate who receives the highest popular vote would receive all the state’s electoral votes. 3
    Initially, Bush led Gore in Florida by fewer than two thousand votes out of the roughly six million votes cast. After an automatic recount diminished Bush’s margin of victory but still showed him coming out ahead, Gore challenged the results and sought recounts in four congressional districts that traditionally voted Democrat. On December 8, after a series of lower-court decisions, the Florida Supreme Court agreed to order a recount of the entire state. Bush immediately claimed that the Florida court’s decision ordering these recounts violated the federal Constitution. On December 9, the Supreme Court agreed to hear the case. And three days later it held in favor of Bush by a vote of 5 to 4. 4
    Three members of the Court majority believed the Florida court’s decision strayed so far from what Florida statutes required that it violated the federal constitutional provision empowering the state’s legislature (not its courts) to direct how the state should choose its electors. Other members of the Court found a fundamental unfairness in the fact that the Florida court had permitted its statewide recount to proceed with different counties judging the validity of ballots according to different standards, including standards that might favor the candidate of one party over the other. For a combination of these reasons (along with the fact that the Electoral College was soon due to meet) the Court majority ordered Florida to stop its recount—at a point when Bush still held a narrow majority of the popular vote. 5
    Four members of the Court (including me) dissented on the critical point of continuing the vote count. Pointing to statutes that permitted Congress to eventually resolve electoral disputes of this kind, they argued that political institutions and state courts, not the U.S.