"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.
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46 comments:
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)
Does anyone know what Scalia's exact words were?
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?
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.
Mark: I've written two law review articles on the subject, which you're welcome to read. This thing here is a blog.
Ann,
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.
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.
bracked isn't really some weird legal word is it? You guys aren't that screwed up are you?
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.
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.
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.
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.
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.
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.
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.
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?)
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.
Reportedly, Justice O'Connor said that Bush v. Gore was her biggest mistake.
Is there a link that will support this statement?
""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.
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, 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.
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.
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.
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.
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...
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. . .
Exalted,
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.
History will have its own verdict about this turkey.
Happy Thanksgiving and all that.
Has Souter made any remarks about the Civil War recently? Maybe we could refight that here as well...
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.
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)
"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: 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: 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.
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.
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.
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.
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: 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.
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: 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: 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.
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: 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.
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: 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.
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