Prof. Hasen's round-ups over the past year have included at least a few
articles that offer, at least superficially (I haven't ready), sophisticated
and intellectually interesting defenses of the outcome of Bush v. Gore.
This confuses me greatly.

I don't understand how it is deemed intellectually legitimate to defend Bush
v. Gore (as I imagine at least some of these articles do, as Richard
Posner's 2001 piece most certainly did) on grounds that the majority failed
to offer.  I believe that such retrospective analysis obscures the nature of
the abrogation of the judicial power represented by Bush v. Gore.

To paraphrase Rumsfeld, the academy ought to deal with the Bush v. Gore that
we have, not the Bush v. Gore that some might have written.  As such, the
fact that the opinion is essentially objectively invalid on justiciability
concerns (as per Chemerinsky and Karlan, among others, if my recollection
serves), among other notable defects, ought to really end the debate about
the legitimacy of the decision.

This goes to the heart of Article III and the nature of the judicial power.
Indeed, it's why I still believe that in a Bizarro World in which adherence
to the law mattered politically, the Bush v. Gore majority ought to be
impeached for having written a decision that doesn't reflect their actual
grounds for reaching the outcome.

I make that leap based on the fact that this Court's ever tightening
justiciability standards, as well as Equal Protection doctrine, are so at
odds with this explicitly "one time only" decision.  In general,
second-guessing judicial decisions as to the motivations is to be disfavored
for a host of mundane reasons.  Nonetheless, the discrepancy here is so
great as to suggest that inquiry should only be required to meet a high,
rather than insuperable, hurdle.  

Indeed, the "one time only" language in and of itself is at such obvious
odds with the concept of "judicial power" within the Anglo-American
tradition and embodied in Article III as to constitute an impeachable
offenses in and of itself.