November 22, 2005

"The election was dragged into the courts by the Gore people. We did not go looking for trouble."

So said Antonin Scalia yesterday. Once the case had been set in motion, the Supreme Court had to take it, he said:
"The issue was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.] What did you expect us to do? Turn the case down because it wasn't important enough?"
I wonder if Scalia approves of the bracketed language! I should think he'd want something more like "The issue was whether Florida's Supreme Court or the United States Supreme Court [would resolve the legal questions raised by Gore's challenge]." He's right, isn't he? Once the Florida courts started interpreting their way toward upsetting the result, the Supreme Court couldn't sit by passively.

UPDATE: If you've arrived here from DailyKos and are looking for my answer to Armando, go here.


XWL said...

Now you are really asking for trouble.

You know that this will stir the lefties to new heights of choleric language.

At least this should provide an opportunity to learn all the latest slang terms for various female body parts.

(suffice to say, Justice Scalia was, as usual, on point and correct)

Sean said...

Does anyone know what Scalia's exact words were?

Pogo said...

The bracketed language ["would decide the election"] used here is precisely why the SCOTUS indeed should have become involved.

That Gore's court challenge raised legal questions affecting the nation as a whole simply demanded and preordained a federal response.

Or didn't Gore's team anticipate that?

gj said...

I don't think people object to the fact that the Supreme Court took the case. What they object to was the decision that they made, which was problematic for many reasons.

Mark said...

Well, I expected a bit more deep analysis by a constitutional law professor. I am not a constitutional law expert, but I do know that many conservative constitutional law scholars (e.g., McConnell) have criticized the Court's reasoning in Bush v. Gore. Florida Supreme Court was dealing with basically Florida election law issues; usually the US Supreme Court allows state Supreme Courts to interpret their own law, even if it affects a national issue. At least, that's my understanding.
So, in order to get involved, the US Supreme Court had to find a violation of federal Constitution. Contrary to his previous long-held narrow view of equal protection doctrine, Scalia found a violation of equal protection in the recount procedure ordered by Florida Supreme Court. Alan Dershowitz, a liberal professor at Harvard, said that Scalia basically betrayed his whole jurisprudence and exposed himself as a result-driven judge.
Reportedly, Justice O'Connor said that Bush v. Gore was her biggest mistake.
So, I think that Scalia is being disingenuous by blaming "the Gore people" for exercising their right to challenge the result.
Also, I am surprised by Prof. Althouse's characterization of Florida courts' decisions as "interpreting their way toward upsetting the result." Florida courts were interpreting Florida law; whether or not the preliminary result was changing or not is utterly irrelevant (or at least, should be irrelevant). Do you suggest that whenever a state supreme court interprets a matter of state law in a way that changes the "result" (whatever it is), the US Supreme Court should get involved? Or should it get involved when it looks like a Republican may lose?
It's also ironic that had the US Supreme Court not interrupted the recount, Bush would have still won and nobody would have questioned legitimacy of President and independence of courts.

teddy_kgb said...

Pogo's comment speaks to why there will never be any true move towards Federalism. If its important, no one wants to trust the state legislature/judicary/executive.

Yeah the Florida Supreme Court probably got it wrong. Twice. But screws fall out all the time. The world is an imperfect place :) (And Bush would have won anyway and the subsequent events muddied the waters)

Christopher Althouse said...

It's particularly embarrassing given that the phrase "would decide the election" is only accurate if siding with Gore would have led to Gore winning the Presidency. From what I've heard, that is not the case, and I doubt Scalia thinks Gore would have been President if the decision had been different.

Ann Althouse said...

Mark: I've written two law review articles on the subject, which you're welcome to read. This thing here is a blog.

Mark said...

Ann: It's great that you've written two law reviews on the subject (no irony!); perhaps, for people who are not very familiar with your scholarship on this issue, you could have mentioned it in your post. Also, I still stand by in my criticism of the substance of your post. I don't know whether you advance the similar argument in the law review articles (that Supreme Court had to get involved because Florida courts "started interpreting their way toward upsetting the result").

Bruce Hayden said...


Any chance of posting links to those law review articles? Or, indeed, a link to somewhere where we can find more of your academic work? For example, the Volokh Conspirators all seem to have home pages with such links.

Jacques Cuze said...

Bruce is making sense. Many bloggers link to "best of posts" or to other relevant articles on teh intarweb.

Earlier today you were upset with Duncan Black for not reading more of your blog and your law articles. The latter is pretty difficult for most of the intarweb, but if you posted links to them, it would not be.

Anyway, no liberal Vincent Bugliosi believes "the conduct of the five conservative members of the court (Rehnquist, Scalia, Thomas, O'Connor and Kennedy) bordered on treason. In his article, published in The Nation, Feb. 5, he wrote, "It misses the point to argue that the five justices stole the election only if it turns out that Gore overcame Bush's lead in the undervote recount. We're talking about the moral and ethical culpability of these justices ... To judge these justices by the final result rather than their intentions at the time of their conduct would be like exonerating one who shoots to kill if the bullet misses the victim.""

Treason Ann. This is the second time in a few weeks when you have ignored and apologized for actions that border on treason.

Jacques Cuze said...

bracked isn't really some weird legal word is it? You guys aren't that screwed up are you?

Jacques Cuze said...

The timeline shows that Bush was the first candidate to file a suit. So Ann, who dragged what into the courts?

Timeline from Covenant News, a pro-life site: November 12, 2000
Officials Begin Florida Hand Count... Bush Goes to Court To Halt Recount... Recount Judge Handles Tough Cases

November 13, 2000
Judge Refuses To Stop Handcount... Gore Launches First Direct Court Action in Florida... Countywide Manual Recount in Palm Beach

Timeline from Findlaw: November 8, 2000

One day after Election Tuesday, the first lawsuit (Fladell v. Palm Beach County Canv. Bd. (PBCCB) ), is filed in Florida by Palm Beach County voters who, alleging voter confusion over the county's butterfly ballot, are seeking to set aside all presidential votes in the county and order a new county-wide election. Defendants include the PBCCB, Bush, Cheney, Gore, and Lieberman.

NAACP President Kweisi Mfume notifies Attorney General Janet Reno of the reported irregularities and minority vote dilution African-American voters in Florida may have encountered on election. He asks Reno to investigate the charges.

November 9, 2000

Concern by Florida voters and both parties grows over the controversial butterfly ballot. Palm Beach County voters file more voter lawsuits by challenging the constitutionality of the ballot and the presidential vote. U.S. Attorney General Reno attempts to defer to state officials over the legality of the ballot.

see Rogers v. Election Canv. Comm'n of Florida

see Horowitz v. LePore

see Elkin v. LePore

November 10, 2000

The Democratic and Republican parties attempt to show distance from the controversy. Governor Bush tells reporters he is making "low key" preparations for the White House in the midst of recount litigation.

November 11, 2000

On a Saturday, the Bush campaign files a federal lawsuit in Miami (Siegel v. LePore) seeking declaratory and injunctive relief to halt all manual recounts.

Mark said...

Thanks for pointing it out, quxxo. I suspected that it was "the Bush people" who first filed in federal courts. Funny how Scalia seems to be engaging in rewriting history.

Bruce Hayden said...

Ok, technically Bush filed suit first. But before that, Gore had requested the recounts in only those three heavily Democratic counties. So, Bush was trying to stop the selective recounts.

That this was pure gamesmanship, and not a true attempt to determine the real winner in Florida was evident in the fact that Gore only requested a recount in 3 of 67 counties.

Bruce Hayden said...

Yes, it was the Republicans who first filed in federal court - trying to stop the selective recount of only 3 of 67 counties on grounds not dissimilar to those under which they ultimately won in the U.S. Supreme Court.

One difference though between the original suit filed in the District Court and the suit won in the U.S. Supreme Court is that the original suit was talking speculatively about Equal Protection issues, whereas the suit, when it got to the U.S. Supreme Court, the Bush campaign could point at one county where votes were being manufactured based on a party line determination of perceived intent.

This was a real difference - the 64 unrecounted counties only counted actual ballots cast with a single vote for president, and this one heavily Democratic county was imputing a lot of votes, almost all of which went for Al Gore.

So, instead of looking at a potential for an unequal treatment of voters, they were looking actual unequal treatment.

Jacques Cuze said...

okay, okay, technically bush filed suit first but...

Jebus, I thought that requesting recounts was the right of Gore. And I thought that going to the courts was the right of Bush.

You seem to want to besmirch both efforts.

I only want to rectify the timeline and show how the treasonous conservative activist judge Scalia is rewriting history. Sounds downright Marxist to me.

Mark said...

I think it's not worth rearguing Bush v. Gore. The undisputable fact remains that Scalia was factually wrong when he said that the Gore people dragged it into courts. It is also hard to dispute that the result would have been quite different (like 9-0) had roles of Bush and Gore were reversed. It's unfortunate that the Court ruled the way it did but I don't see much point in rearguing the case.

Jacques Cuze said...

Well I agree that Gore made a mistake about not getting recounts in all the counties. But that was not because he only saw problems in those three counties. It was also because they thought that asking for recounts across the state would be too burdensome on the state and would cause an even bigger uproar.

But what puzzles me, is that if asking for recounts in only certain counties is unconstitutional, then why did Florida law make that option available to Gore? Why didn't the Florida election law not say it's all or nothing? So he follows the rules and then he is screwed when the rules themselves turn out to be unconstitutional? And though there is plenty of time left, the Supreme Traitors decide there is no time left?

Actually I thought Gore's big mistake was hiring SCO Boies. What a jagoff that lawyer is. Well Lieberman was an enormous mistake as well. What a shande far di goyim that macher has turned out to be.

Mark said...

Yeah, I never really liked Boies or Lieberman. My respect for Boies dropped even further after his pathetic criticisms of federal courts' rulings in Terri Schiavo case.

reader_iam said...

Quxxo: "What a shande far di goyim that macher has turned out to be."

Well, the things we learn around here! I'm not sure how deep an insult that is from an inside perspective, but I did look it up did look it up and got this:

"A shame in front of the goyim," the scathing criticism of Judge Julius Hoffman by Abbie Hoffman during the trial of the Chicago Eight.

Not sure what the heck all that has to do with with all this, though.

Pooh said...

Even as a liberal, (and Anti-Scalia on many many things) I have to say that I have some sympathy. Of coure SCOTUS had to take the case. And once there, it was literally a no win situation for them. Regardless of the ruling, almost exactly 50% of the country would hate them, and acuse them of playing politics.

The American layperson didn't understand the legal questions, or the framework under which various judges and justices claimed to operate. They just knew that there was a legal question. And this was a presidential election. Ergo, the Supreme Court must decide it. (And after that bit of legal realism, I will now light myself on fire.)

Where Scalia, J, gets in trouble a bit here is the precise words used. The slightly pejorative "dragged" by the "Gore people" is intemperate at the least, and not even Nino's strongest supporters will claim that he is not known for the occasional intemperate remark or turn of phrase.

XWL said...

Why do Justices choose to avoid intemperate language for the most part?

Not like they could lose their job (at least not very easily).

(Wouldn't it be funny if Chief Justice Roberts started boasting and taunting like some WWE wrestler?)

George said...

Scalia once again proves his ignorance of the law. "Bush vs. Gore" means Bush was the plaintiff. It was Bush who dragged his losing election bid into the courts to have the will of the people overturned by Scalia and his cabal.

EddieP said...

Gore conceded before he didn't.

How many times do you get to do that? Sounds like the Clinton "one fondle is OK" policy.

brylin said...

I always wondered what lefties expected Florida Secretary of State Katherine Harris to do - her job was purely administrative - at a statutorily set deadline she was to add up the votes from the Florida counties and certify a result - which is what she did.

The left then began a series of personal attacks on her: they made fun of her makeup: "The Boston Globe said maybe she was planning to unwind at a drag bar, because of all her makeup, and the Boston Herald called her a painted lady."

She became Cruella DeVil in the eyes of lefties because she refused to re-interpret clear statutory deadlines. Some deranged leftie even tried to run over her with his car.

To lefties the law means nothing; all that matters is the result. BAMN - By Any Means Necessary!

Goatwhacker said...

Reportedly, Justice O'Connor said that Bush v. Gore was her biggest mistake.

Is there a link that will support this statement?

Ann Althouse said...

""Bush vs. Gore" means Bush was the plaintiff."

No, it doesn't. In a Supreme Court case, the first name is the party who is seeking review, whoever lost below. And in this particular case, Bush and Gore weren't the original named parties. The lawyers got the case name changed along the way to reflect the real stakes.

reader_iam said...

Ann, thanks for clarifying that. You saved me a google search for this non-lawyer type to "prove" that my understanding about name order was correct. For a minute there, I thought my understanding of years had been in error (not a good feeling for an editor).

Jerome Morrow said...

Thanks for clarifying that, Ann. You beat me to the punch.

Some people here also seem to forget that several independent groups subsequently determined through exhaustive re-counts that Bush would have won the re-count under almost every possible scenario.

The Jerk said...

Once the Florida courts started interpreting their way toward upsetting the result, the Supreme Court couldn't sit by passively.

Sure it could have. The Florida SC was interpreting Florida law, of which it is the final arbiter, as I'm sure you know. The U.S. Supreme Court ginned up an unprecedented equal protection rationale (and the Rehnquist/Scalia/Thomas faction invented an equally silly Art. II s. 1 rationale) to create a Federal question.

Jacques Cuze said...

jerome, uh, no.

A full statewide recount that the supreme court demanded but prevented and that florida was open to has gore winning

And the improperly marked butterfly ballots which were not counted under any scenario would have Gore winning a land slide.

Jacques Cuze said...

Gore did win the popular vote.

And the "uniter not a divider" proceeded to divide the country bitterly.

So sad, too bad, 2000+ deaths and America is poorer and not safer.

Jacques Cuze said...

The blue planet, the blue country.

So maybe the uniter has united us after all. Shame about what happened to our country in the meantime.

sonicfrog said...

I always thought the problem really started when officials started changing the vote counting standards in (I believe) Broward Co, which was one of three heavily Democratic counties Gore chose fro the recount. There were three prior elections for local office where recounts were performed. The same counting standard was deemed reliable and accurate in each of the past elections, i.e. this counts as a vote, this does not. When they started changing the parameter of what counts for a vote, this is where the re-count took on the appearance of fishing for a Gore victory. Just my 1 1/2 cents.

Jerome Morrow said...

quxxo, uh, yes.

Do a little research and you'll find it. I know the MSM wasn't too keen on reporting it because it completely undercut the charade liberals like you have been perpetrating for the last 5 years. Interestingly, the New York Times was part of the groups that performed the re-counts.

Pooh said...

Arguing about what did and did not happen 'on the ground' in Florida is nice, but not really relevant to Scalia's statements. I will note that its a bad idea to have a campaign staffer also be in charge of counting the votes, if for no other reason than it gives 'moonbats' something very visbile upon which to hang their hats. But I digress.

I hate the result of the 2000 election, but what could the Court have done? I think for reasons of institutional credibility, they could not have done anything to overturn the election, so Bush has to win. After that, it's just posturing.

Like I said in my earlier comment, I feel very dirty using the "it's all just politics" card, but from a pragmatic standpoint, I just don't see how the Court can have Gore winning and remain intact and relevant in the aftermath.

Admittedly, I didn't understand Marbury very well, being more terrified than anything else at the time, but it seems there are at least some parrallels, (after Marshall went out of his way to say that it was his case, he refused the mandamus on reasoning which I recall not following at all.)

Prof. A, please tell me why I'm wrong...

Mike said...

My view of this episode was formed while sitting at home watching hours of televised recounting from one of the recount counties. There were three recount officials, two democrats and a republican. The republican was the bald guy with glasses who became famous for squiting at the ballots as he tried to ascertain the intent of the voter. This guy and one of the democrats appeared to make a serious attempt at calling the ballot, but the other democrat would barely glance at the ballot, prounounce it "Gore" and put it in the discard pile. Having witnessed this charade, I do not find the "equal protection" argument to be farfetched at all. A fradulent vote is just as much disfranchisement as any other kind of polling shenanigans. I found the Supreme Court action of stepping in and saying "enough" to be the best possible outcome to the whole mess. What I do find farfetched is the expectation that political officials will all operate in good faith in this situation.

The Exalted said...

yes, jerome, bush would have won under almost every circumstance

yet, what is that almost circumstance?

why, its the circumstance under which the entire state underwent a recount, aka, when all the votes were recounted, gore had more.

fairly key almost, and, despite your ignorant and incorrect suggestion to the contrary, this, in fact, was underplayed by all media coverage of the consortium, who harped on the fact that bush would have won under the recount sought by gore.

moreover, i laugh at the idea at the USSC just had to take the case . . .certiorai is a matter of discretion, not a right.

last, to suggest that the "gore people" dragged it into the courts, when it was bush who sued to prevent recounts (no matter how just their suit) is flat out, ahem, reprehensible and quite revealing. . .

Pooh said...


There is "had to" in a legally mandatory sense and "had to" in the real world. And in the real world, any case essentially deciding the presidency is going to be decided by the Supremes.

Jerome Morrow said...

Okay, this is for The Exalted and any other ignorant liberals out there:

"On November 12, 2001, the New York Times reported:

Even under the strategy that Mr. Gore pursued at the beginning of the Florida standoff — filing suit to force hand recounts in four predominantly Democratic counties — Mr. Bush would have kept his lead, according to the ballot review conducted for a consortium of news organizations … The media consortium included The Times ... "

Gore lost, people, and he would have lost whether or not the US Supreme Court had gotten involved. Get over it.

Jerome Morrow said...

Also The Exalted, Gore never asked for a statewide recount. That, in fact, was the Bush team's argument.

Nice try, though.

whit said...

Yes, the cry baby candidate took every action available to him to contest the election. He ignored deadlines in Fla. Election Laws. He Lost two cases in lower courts which were overturned by an out of control activist Florida Supreme Court which seemed bent on recounting until Gore won. The process was threatening to turn into a full blown constitutional crisis and thank God, the U.S. Supreme Court stepped in and put an end to the madness.

Subsequently the losing candidate retreated into a nervous breakdown and has been unhinged ever sinse.

And for this outcome we should all be grateful tomorrow.

Happy Thanksgiving to all.

peter hoh said...

History will have its own verdict about this turkey.

Happy Thanksgiving and all that.

Pooh said...

Has Souter made any remarks about the Civil War recently? Maybe we could refight that here as well...

Ann Althouse said...

Everyone: The events and the law in Bush v. Gore were too complicated for us to keep them straight in our head -- on the off chance that you took the trouble to fully understand them. State statutory and constitutional law, federal statutory and constitutional law. It was mindboggling. I wrote two law review articles on the subject, and I can't remember the situation enough to talk off the top of my head about it other than to say EVERYONE who talks about this case now is spinning.

I accept what the Court did in this case and have all along. And make no mistake: I voted for Gore and completely wanted Gore to win. I rooted for him every step of the way. I never liked Bush one tiny bit before 9/11. So, here's the conclusion section of my article from a symposium in Maryland Law Review, which I belive contains essence of Althouse:

Among courts, the United States Supreme Court goes last. With no higher court, it cannot be reversed. It has the pseudo-infallibility of finality. Yet the United States Supreme Court is not insulated from criticism, and of course, criticism has been aimed at its work in the Bush-Gore litigation. Much of that criticism deserves its own criticism because it too can rationalize and distort to serve the preferences of the writer, who, one can assume, preferred one of the candidates in the 2000 election. That criticism of criticism, to which I add my little part here, can go on ad infinitum, unlike litigation, which has to come to an end, especially when there is a presidential inauguration that must take place and a nation with urgent interests in a smooth transition to a new administration.

Many of those who were hoping to see a shift in the votes that would elect Al Gore contended that we could afford several more weeks of uncertainty and a political fight in Congress to make the final determination. Justices Souter, Breyer, Ginsburg, and Stevens all thought the United States Supreme Court ought to have sat out the dispute and left it to Congress to right any wrongs that the various efforts in Florida might have caused. In 2000, we lived in a golden era of peace and prosperity, and the nightly news showing Floridians holding ballots up to the light in search of degrees of chad detachment made a somewhat entertaining TV show. But as Justice Stevens wrote in Printz v. United States:

"Since the ultimate issue is one of power, we must consider its implications in times of national emergency." Printz held that Congress may not "commandeer" the executive branch officials of state and local government, in a case that involved the use of local law enforcement officials to do background checks on gun purchasers. Dissenting, Justice Stevens stressed the seriousness of finding a lack of power to do something that might be extremely important in an emergency. With chilling prescience, which might lead some of those who approved of Printz to rethink, Justice Stevens wrote:

"Matters such as the enlistment of air raid wardens, the administration of a military draft, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond."

Could we have endured the instability and delay of waiting until January if the terrorist attacks of September 11, 2001 had occurred on Election Day? Perhaps it is enough of an answer to say, without doubt, Al Gore would have conceded the election immediately. Perhaps the answer suggested in Printz was enough: in an emergency, state and local officials would instantly and actively cooperate.

Did the members of the Court who managed to end the election controversy on December 12 go wrong? The concurring opinion dared to take a close look at the state court's statutory interpretation and declare it a sham. That could be seen as taking over the state court's role of saying what state law is, but there must be some limit to the extremes to which a state court can go in calling things state law. The United States Supreme Court has a duty to defend its own lawsaying role. Did the per curiam opinion arrogate a power to determine state law by assuming there was nothing more to decide about the deadline? But the Florida Supreme Court had committed itself to the December 12 deadline, and one can well understand the good sense in denying that court a chance to reconsider.

The per curiam opinion's closing paragraph is a plea for belief:

"None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."

Just as the Florida Supreme Court had cloaked itself in the language of statutory interpretation in what seems to have been an effort to protect itself from the United States Supreme Court, the United States Supreme Court, though it had no higher court from which it needed shielding, wrapped itself in the language of judicial restraint in what seems to have been an effort to protect itself from the attack to which it is exposed: criticism in "the political sphere." In a stroke of poetic justice, even as the Florida court's references to statutory interpretation could not protect it from the attack of a United States Supreme Court that is determined to reverse it, the United States Supreme Court's references to the unwilled, apolitical nature of its role could not shield it from the attacks of those who are determined to criticize. The Supreme Court's critics themselves use the cloak of language and are subject to rejection when people do not take their writings at face value.

In the end, Bush v. Gore works best as a rich and revealing case study of the human mind in action. Everyone who talks about Bush v. Gore without admitting that they are engaged in the same kind of cloaking and advancing of personally preferred ends is still an active participant in that larger display. If I could only get outside of it myself, I would love to be able to describe the whole picture; but for now, I will end my effort, having attempted to show something of the interplay between the Florida Supreme Court and the United States Supreme Court as both courts, though they were staffed by human beings who had to have cared about who became President, struggled within a system of separated state and federal legal authority and orthodoxy about the role of judges. Myself, I do not doubt that they meant to use their power constrained by this authority and orthodoxy. The inevitable imperfection of their work does not deserve outraged accusations. At the very least, those who would criticize ought to see how the judges who voted for the outcome the critics liked were all doing something that they would have found a way to criticize if they had felt so motivated.

XWL said...

I know that most recent post deserves proper respect and consideration (and your argument is well presented). . . . .

But I am inhabited by the imp of the perverse, so. . . .

New this Chrisnukkahkwanzmas, bottled in squirrel free facilities, enobled with virtue by true feminist the Althouse blog gift shop presents Althousian Essence.

(can be used in small quantities on the neck and behind the ear, or splashed in the bath for a luxuriant soak of mirth, law, and art)

Howling Latina said...

"This thing here is a blog."

What is that supposed to mean...?

You're not allow to question or bring legal points to readers, even if you're not a constitutional scholar such as yourself with law review articles?

Geez, get a hold of yourself. No one is that important. Remember, it's only a blog.

Justin said...

Prof Althouse,

If you would have taken Fed Courts with Professor Monoghan at Columbia, you would have failed. Easily. If "essence" Althouse means substituting ephermal concepts of idealism which cannot be argued for or against to replace the rigors of federalism and division of powers upon which the limited powers of Article III are developed (I notice you fail to cite to Article III once in the excerpt), then you aren't a lawyer at all, and your law review article belongs in the National Review, not a law journal.

Then again, someone who all of a sudden "changed their mind" about the whole political spectrum after 9/11, and yet remains stubbornly supportive of the administration after the Iraq debacle, deserves the company of their new friends. Federalis donicum facilis, and all that jazz.

Ann Althouse said...

Justin: That was the conclusion to a long, detailed article. Althouse, The Authoritative Lawsaying Power of the State Supreme Court and the United States Supreme Court: Conflicts of Judicial Orthodoxy in the Bush-Gore Litigation, 61 Md. L. Rev. 508 (2002). Go read it. Then come back and say something that makes sense!

Harry S said...

Scalia's comments reveal the ugly truth about the Supreme Court's involvement, since by any rational measure, the case involved a question of state law -- the state's interpretation of its own election procedures -- not a question of federal law. The U.S. Supreme Court has been quite explicit about this point: The state supreme court's are the ultimate arbiters of state law. That is what federalism is all about. The Federalist Society and its adherents, including Scalia, are quite incensed by federal interference, particularly that of the federal courts, to restrain state officials, unless, apparently, it might mean that they lose an election. In the end though, politics trumps the rule of law. How could we sit idly by, Scalia asks, and let the Florida Supreme Court rather than us decide the election. That's an easy one: It's called deference to the powers of the States, and you call for it all the time.

Ann Althouse said...

Harry S: I've written a long article on this topic and very strongly disagree with you. At some point, you cannot allow the state court to affect federal interests by using what is really just a device of calling something state law in order to insulate itself from review. At some point, it's a sham. You should look back on some of the cases from the Civil Rights Era to see why that proposition must be true. The real disagreement in Bush v. Gore, as I describe in the article was over whether the Florida court had crossed the line into a sham assertion of state law as opposed to just a weird or bad interpretation of state law.

whit said...

It's funny how the newfound respect for states rights is coming 180 degrees in the political spectrum than previously.

I will graciosly assume that those espousing the notion that the Florida Supreme Court was "interpreting" Florida law are merely uninformed.

The Florida Supreme Court had ignored and swept aside Florida Law and were ineptly making new law as they went along.

Pirate Dreams said...

What I don't understand is why you "Althouse" have such a high opinion of your law review articles. Havign been editor of a Tier 1 Law Review, most are ghost written by students anyway, are not so much correct but rather state they are correct and of course, carry minimal persuasive authority. Get over yourself. Everyone can easily see the result was the issue and the method was developed to get the result. Whether you agree or disagree, the result is what drives the majority of th opinions (look at last years SCOTUS rulings). Get over yourself.

Ann Althouse said...

Pirate Dreams: No one has ever written even a small part of an article for me. I have written every word of my own manuscripts (except what is in quotes). I have had the usual student editors at the journals, but they only contribute minor style changes. So your characterization is flat wrong.

J.P.S. said...

99% of the comments here are complete non sequiturs. The initial post was regarding Justice Scalia's comment that it was Al Gore who "dragged" the case into federal court. This is demonstrably untrue, and you all know it. Even if one concludes that the Bush team was legally correct to argue that the recount in Florida must be stopped (a perfectly reasonable argument), it was still incorrect for Scalia to suggest that it was Gore who dragged the case into federal court. So why would Scalia say that? Because he is a partisan hack who would say anything to justify his partisan choices and partisan "rulings".

As to Ann's comments that the USSC was justified in stepping in to this state-law matter because of the federal consequences of the FSC's decision, I must dissent. Presidential election results choose STATE (or, sometimes, district) ELECTORS. Florida and only Florida has a legal interest in who is properly elected to be Florida's electors. Just because it might have eventually effected who was chosen by those electors to be President is completely irrelevant. The fact is that the supposed "States Rights" Justices violated their own alleged judicial philosophy in order to achieve a partisan result. That's just the way it is, despite Ann's eventual joy at our current presidential administration post 9-11.

Grodge said...

I am sure that Scalia would agree with the "bracketed language" because his intent was likely to decide the election.

So, if the Florida re-count did not rise to the importance of decidingthe national outcome, then it would have been okay to deny the voters' equal protection?

As the above comment states, the Fla SC should decide Fla law, and the electors for president are chosen by the respective states. The SCOTUS does NOT have a dog in that fight.

Chris said...

From the perspective of a foreigner (Australian) the odd thing about the whole discussion is that everybody accepts that the basic disaster that is the US electoral system is a fact of life, or a law of nature, or an act of god. In the UK and Aus and NZ and Canada we don't have these issues arising because we have the pig simple bloody obvious institution of a national electoral office that runs local, state and federal elections without letting every county do its own thing on the basis of what party happens to run it. Over here, even when we have governments elected with a minority of the popular vote, nobody grumbles, because we trust the agency that's in charge of crumbling the cookie. You Americans are crazy.
Actually, we did have an electoral case once; there was a tie, the returning officer drew a name out of a hat, and in the end the High Court said he should have made a decision based on his own judgement rather than chance. But that's about it.

adk said...

Ann wrote: "No one has ever written even a small part of an article for me."

So, are you the one who included a completely factually inaccurate statement in your 2004 U Penn article? In "Vanguard States, Laggard States," you say that the Supreme Court, in Oakland Cannabis Buyers' Cooperative (OCBC), held federal drug laws "preempt" California's medical marijuana law. Of course, that is not at all what the Court held in OCBC. For the non-lawyers out there, "preempt" has a very specific meaning in this context: "To replace or supersede (a law) by preemption (such state laws are not preempted by the federal Energy Reorganization Act of 1974 - National Law Journal);
To preclude or bar (an action) by preemption (federal airline deregulation does not preempt claims under state contract law - National Law Journal)."

In other words, preemption means that the state law can't exist--that it's replaced by federal law. OCBC held that a medical marijuana cooperative could not rely on a defense of "medical necessity" to escape federal prosecution. It had absolutely nothing to do with whether federal drug laws preempt state medical marijuana laws and state medical marijuana laws remain in force to this day. Indeed, if federal drug laws preempted state drug laws, states couldn't enact any drug laws of their own. Drug enforcement would be left entirely to the federal government. I've never heard anyone seriously suggest that the federal drug laws prevent states from enacting their own drug laws (such as medical marijuana laws) through preemption.

So, Ann, could you please explain how a law professor who specializes in federalism and constitutional law could make such an incredibly inaccurate statement about something so basic in your area of expertise?

Its hard for me to take anything you say seriously when it seems that you can't even be bothered to read the Supreme Court cases that you write law review article about. If you'd even skimmed OCBC, or if you had even the simplist understanding of the federalism/medical marijuana debate, you would not have made that sort of error.

So, is there something I'm missing that justifies what you say in the Penn article or are you just a hack?

Ann Althouse said...

ADK: The CSA preempts the state's medical marijuana program which is in conflict with it. The state tried to authorize a use of marijuana that the federal law prohibits. The state can't do that. Other state drug laws aren't preempted, because they aren't in conflict with federal law.

In any case, whether I wrote the words of my articles or not, I'm responsible for what's in them. If there are mistakes, they should be caught in the editing process too, so that is where the contribution of the law review editors is important.

Anyway, this isn't a mistake.

Harry S said...
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Harry S said...

The thing that makes me doubt what you're saying, Professor Althouse, is the "good for one ride only" expansive nature of the equal protection analysis used in the opinion, with the court looking at varying standards in vote counting throughout the state that were not remedied by the Florida Supreme Court's order and insisting this gave rise to equal protection violations, but then saying weakly, "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Bush v. Gore, 531 U.S. 98, 109 (2000).

As for the concurrence by Rehnquist, which you apparently endorse, the federal interest in enforcing the interests of the state legislature over that of the state's courts which the former Chief Justice divines from Article II, Section 1, Clause 2 seems a somewhat weaker reed than the Southern States’ hundred year war against the Fourteenth Amendment that the Supreme Court addressed in the civil rights cases. I am happy to see that "in ordinary cases, the distribution of powers among the branches of a State's government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character." Id. at 112, Rehnquist, C.J., concurring. However, the fact that the concurrence then proceeds to simply parse state law in order to do nothing but that strikes me as contrary to notions of federalism.

The dissent raises a disturbing point when it argues that, "The federal questions that ultimately emerged in this case are not substantial. Article II provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Ibid. (emphasis added). It does not create state legislatures out of whole cloth, but rather takes them as they come-as creatures born of, and constrained by, their state constitutions . . . . Neither § 5 nor Article II grants federal judges any special authority to substitute their views for those of the state judiciary on matters of state law." 531 U.S. 123, Stevens, J., dissenting.

I'm not an expert on this subject at all, but it all strikes me as a sad exercise in realpolitik -- as a reminder that five members of the Court can literally do anything they set their mind to. In mmy view, the Court expended large amounts of its carefully guarded moral capital in choosing the President the majority felt most comfortable with.

It reminds me all too much of the congressional overreach in the Schiavo case, which also cast federalism aside to reach the result conservatives favored in that instance. I somehow doubt that the same five justices would have reached the same results if the parties had been reversed. Do you?

adk said...

Ann: The CSA absolutely does not preempt state medical marijuana laws. Medical marijuana is still legal under state law in California, even after Raich. I assume you're aware of this, having just written a law review article about Raich. You must know that what you wrote in the U Penn article is not accurate, I'd hope you admit it.

Of course, California's law does not change or override federal law. The feds can still enforce their own marijuana laws. But federal law does not "preempt" California's law, which is what you wrote in your article and appear to stand by even now. (Incidentally, OCBC was primarily about medical necessity and not federalism, as you also erroneously state in your article.) Either you aren't using "preempt" correctly in your article, or you have a severely mistaken understanding of OCBC. But, what you said in your article is definitely inaccurate. Or, do you really maintain that California's medical marijuana law is invalid--that it has been preempted by federal law?

adk said...
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Ann Althouse said...

ADK: The state can make marijuana illegal to the same degree as federal law does and thus engage in parallel enforcement. The Compassionate Use Act functions to carve back the amount of prohibition that exists under state law. However the act cannot function to make it legal, because it is illegal under federal law. The effort to authorize the use is thus preempted. However ithe Compassion Use Act does stand as an announcement that the state authorities will leave these users alone.

adk said...

Ann: I appreciate your taking the time to engage me in discussing this. It seems that you are saying that, because California's medical marijuana law does not prevent the federal government from enforcing its own law prohibiting marijuana for any use, federal drug laws "preempt" the California's medical marijuana. I'm sorry, but that absolutely is not preemption, no matter how you try to phrase it.

Here's a very quick definition of preemption (a little way down the page): “Preemption” describes the removal of a government’s power to regulate a specific subject matter. When an act of Congress removes a local or state government’s power to regulate a specific subject matter, the process is called “federal preemption.”

Federal drug laws do not remove California's power to enact the Compassionate Use Act. The CUA remains the law of the land in California to this day and California's officials all follow it. When they don't follow it they get sued.

One last question, if federal law already "preempted" California's law, why would the city of San Diego be planning a lawsuit to overturn California's law on those exact grounds?

Ann Althouse said...

ADK: I'm glad you appreciated my response, and I advise you to read it again. I've tried to explain it to you, despite the disrespect you've shown toward me. I'm a constitutional law professor and have been for 20 years, so I don't appreciate being referred to quick definitions on the internet!

adk said...

Ann: I wasn't referring you to the definition to be disrespectful; I was using it to explain why I think what you said in your article is incorrect. The definition I cited is my understanding of what preemption means and I thought the website did a better job at saying it than I could. I figured that putting the definition down would allow you to correct me if you think that I have the wrong definition. While I'm not a law professor, I am a lawyer (though a relatively recent grad) and I feel pretty confident that the definition I gave is exactly what preemption means.

You say that you've "tried to explain it" to me but nothing in your explanations--which again, I appreciate your taking the time to post--rebuts my position. I agree with you that the federal government can continue to enforce its laws outlawing marijuana and that medical marijuana is not legal under federal law. But, that doesn't mean federal law "preempts" the Compassionate Use Act.

If my understanding of "preemption" is wrong, I'll admit I'm wrong and apologize to you. But, if I'm right about what preemption means, I just don't see how you can stand by the claim that the CSA "preempts" California's medical marijuana law.

Ann Althouse said...

ADK: The reality is that the medical marijuana program is about activity that is all criminal under federal law. The state purported to legalize something, and it could not, because of the superior law of the CSA. You're just referring to the residual effect of the statute as it serves as a carving back of the state's own criminalization of drugs. That is the absence of regulation, which of course, federal law doesn't interfere with. If you want to get into an argument about whether the word preemption should be used to refer to this situation, it would require a lot of debate involving language from cases. I'm not doing that here.

Ann Althouse said...

I will add that the reason this is properly conceived of as preemption is that the federal government tried to do something and the state government tried to do something (authorize the use of medical marijuana), and the regulated persons could not follow both laws. If they tried to use the state law, they would be in violation of federal law, and they would need to follow the federal law. Following the state law is cause for arrest under the federal law. That's a "conflict preemption" situation.

adk said...

Ann: Sorry for the delayed response, these law firm hours are starting to interfere with my internet time.

First, California has not just carved back its own laws. The state and cities have various laws to implement the Compassionate Use Act that regulate medical marijuana (such as a state law for medical marijuana ID cards, and local laws licesning medical marijuana stores.) Now, it may be that one day (perhaps if San Diego goes through with its planned case), a court will find that the federal drug laws preempt California's various medical marijuana regs. But, that day certainly hasn't happened yet.

And, moreover, this is all tangential to my main concern with your article: namely your discussion of the Oakland Cannabis Buyers' Cooperative case. You claimed the Court held that federal drug laws preempted state drug laws in your article, but that isn't at all what the Court held. In fact, the word preempt does not appear in the opinion at all.

For all I know, maybe its largely the fault of an editor at the Penn law journal. But, either way, it seems to me that what you wrote about OCBC in your Penn article is factually incorrect.

Ann Althouse said...

ADK: You're focusing on one word in a minor sentence in the article for some reason, not on the subject of the article at all. Good luck with your future litigation, but it's quite apparent that California's effort to legalize medical marijuana cannot overcome the fact that it is criminal under federal law. Whether the word "preempt" is too narrow a term of art to apply to the situation is not something I'm going to debate here. Please don't repeat your point again.

Ann Althouse said...

Oakland Cannibis is about the scope of the federal statute and whether it precludes a state law defense of necessity. Many of the briefs in the case use the term preemption for this. The Court reads the statute broadly enough that there is no room for the state law defense, which is thus preempted.

adk said...

Ann: Sorry about another delayed reply. I won't repeat my point again, I think I've made it pretty well by now. I will say this: the necessity defense the Court considered was the common law defense of necessity and not a "state law" defense. So, that spin/explanation doesn't quite work either. You misstated the holding in OCBC in your article. You're right: it was a minor section of the article. I don't know why you don't just own up to the error.

Ann Althouse said...

ADK: Are you saying the common law is not state law, that this is an area of federal common law? I think not. In any case, the sentence of my article that you've fixed on is a discussion of the Stevens dissent, and he is most certainly talking about wanting to constrain federal law to leave room for state lawmaking. Here is the key passage that I am writing about:

"The overbroad language of the Court's opinion is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union. That respect imposes a duty on federal courts, whenever possible, to avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a State have chosen to "serve as a laboratory" in the trial of "novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 76 L. Ed. 747, 52 S. Ct. 371 (1932) (Brandeis, J., dissenting). In my view, this is such a case. By passing Proposition 215, California voters have decided that seriously ill patients and their primary caregivers should be exempt from prosecution under state laws for cultivating and possessing marijuana if the patient's physician recommends using the drug for treatment. n4 This case does not call upon the Court to deprive all such patients of the benefit of the necessity defense to federal prosecution, when the case itself does not involve any such patients."

If you want to criticize my use of the word preemption, address this passage, which is the part I am writing about.