ABSTRACT

This chapter explores what constitutional discourse might look like absent a myth of origin to reference in order to legitimate judicial review as practiced in a controversial constitutional decision, Bush v. Gore. Hence, the Bush v. Gore case offers an interesting opportunity for exploring alternative forms of judicial identity absent a central myth of origin. By reading the opinion in Gore as parallel to an open secret in a classic coming out story, the author parody the Supreme Court's straight-faced insistence that their work is legal, not political, and offer an alternative narrative about judicial identity. Following the classic open secret pattern, the partially--out, partially-closeted majority cannot help but acknowledge its visible political behavior, while still claiming to have been forced into it by others whose politics are already out of the closet. Two Justices, Breyer and John Paul Stevens, seem particularly concerned that Bush v. Gore will lead to a loss of public acceptance of the US Supreme Court.