Balkinization  

Monday, January 04, 2010

What CLS Got Wrong

Brian Tamanaha

Like Sandy, I too agree with just about all of Mark's post, except for the essential point he neglected to mention. The pertinent passage is his closing:
I myself don't find these arguments particularly strong, but that -- on the CLS view -- doesn't mean anything about what constitutional law on this matter "really" is. If, as Holmes said and as CLS reiterated, what the law "is" is what the courts will do in fact, the thing to do is to figure out which side of the argument can count to five first.

Or, put another way, remember Bush v. Gore?
By almost all accounts, Bush v. Gore was an embarrassing failure of legal analysis, a historic stain on the court to the enduing shame of the five who signed on. This consensus view confirms that much more is involved than getting to five. Although Mark cites Holmes, the favorite authority for skeptical assertions, Holmes also wrote, "It has given me great pleasure to sustain the constitutionality of laws that I believe to be as bad as possible because I helped thereby to mark the difference between what I would forbid and what the Constitution prohibits."

CLS was correct that the law is whatever the court decides, but this does not mean that whatever it decides is legitimate or proper. The crucial mistake of CLS was its failure to emphasize that, while legal analysis is frequently capacious enough to support any outcome (especially at the level of Supreme Court cases), nonetheless, usually certain arguments are legally stronger than others. Mark's own comment (on the weakness of the arguments against validity) confirms this. That is why Jack is right to focus on the soundness of legal analysis.

It is not just about marshaling five votes, at least not for judges with integrity, but about coming up with and adhering to the most compelling legal argument. The more often we emphasize this the harder it will be for judges to engage in cynical analysis.


Comments:

Why would you use Bush v. Gore, rather than, say, Roe v. Wade, as the textbook example of insupportable legal reasoning? Is there objective evidence for the proposition that “almost all accounts” reject the reasoning of the former? (I happen to know Professor Nelson Lund, who vigorously defends the decision, but perhaps he is the “almost” in your assertion). If so, what is that evidence with respect to the latter?

One way to assess the reasonableness of a judicial opinion would be to ask whether someone who disfavors the result could nonetheless accept the logic of the reasoning. In the decades since Roe v. Wade was decided, has there ever been a legal scholar who favors abortion restriction as a matter of policy or morality who nonetheless thinks that the Court’s decision was correct, or even plausible? (It is, of course, well known that many legal scholars who sympathize with the result in Roe either think it was wrongly decided or have tried to put forward alternative reasoning to support the result. I believe Professor Balkin wrote a book on the subject).

Judged by this standard, Bush v. Gore presumably would come off equally badly. But I would suggest that the situation there is more complex. In the first place, a lot less time has elapsed since the decision, and passions regarding the 2000 election still make it difficult for Gore supporters to be objective about the case (the same is true, but to a lesser extent, for Bush supporters, who have less of an emotional investment). Moreover, while critics of the case may suggest that it was wildly wrong in the same way as Roe, the truth is that there is a much more plausible constitutional justification for the Court’s basic assertion of an authority to intervene in the conduct of a state election contest that would determine the outcome of a presidential election (recall that the first Bush v. Gore decision was unanimous). The criticisms of Bush v. Gore, at least as I understand them, have been premised on (a) contestable views regarding the correctness of the Florida Supreme Court’s rulings and/or (b) disagreement with the wisdom of the Court’s intervention at that particular stage in the proceedings. These are reasonable criticisms, but they are much less fundamental (and, IMHO, more debatable) than the criticisms leveled at Roe.

Unfortunately, your use of Bush v. Gore as an example tends to confirm, rather than refute, Professor Tushnet’s faith in CLS.
 

This comment has been removed by the author.
 

mls creates a "straw horse" with his injection of Roe v. Wade. Keep in mind that there have been many challenges over the years since to Roe v. Wade., whereas Bush v. Gore's 5-4 decision was structured so as not to serve as precedential - other than to "elect" Bush president.

By the way, underlying this and the preceding posts is constitutional interpretation with the usual suspects lining up on the side of originalism in its various versions and on the side of living constitutionalism (also in its various versions) with a few having a foot in each camp. Historical reviews on constitutional interpretation tend to cherry-pick among founders, framers, SCOTUS decisions, early scholarly constitutional texts, etc, to defend one's position. I recently read John P. Figura's "A Mostly Purposivist Century: Theories of Constitutional Interpretation in the 1800s" available via SSRN at:

http://ssrn.com/abstract=1524343

that seems much more historically exhaustive than recent articles on constitutional interpretation. Figura avoids using "originalism" and "living constitutionalism" as those terms were not in vogue in the 1800s to the extent that they are currently.
 

I second my wish that Bush v. Gore be kept out of these discussions. There is a minority that supported the ruling, though it must be said that many of them didn't like the reasoning. So, "almost" is unhelpfully argumentative in this context.

Not that bringing out Roe helps much. It should be noted on objective grounds the ruling was more "plausible" given the status of the law at the time as shown by the lower courts (over a few years) going 2:1 in its favor and the justices signing on 7-2.

As to critics supporting, I'm unsure what "morality" means. Clearly, many Catholics who oppose abortion think the ruling is legally plausible or even correct. Perhaps it means they think abortion should be made illegal. But, if they thought it 'correct,' they wouldn't be able to, right?

Still reckon some can be fairly easily found who think it at least "plausible" as the Catholic Church thought of Griswold. For instance, the Southern Baptist Conference media representatives guardedly supported Roe as "religious liberty," greater opposition taking time to develop.

[Catholicism and American Freedom by John T. McGreevy]


I think discussions of CLS etc. should avoid Roe and Bush v. Gore, if possible.
 

To clarify, lower courts (as cited by Roe) had already repeatedly reached the same decision by 1973, including drawing a line at early abortions.

Ironically, a well cited article in these opinions (also cited by Justice Douglas) was written by retired Justice Clark and published at a Roman Catholic affiliated law school.
 

mls:

Why would you use Bush v. Gore, rather than, say, Roe v. Wade, as the textbook example of insupportable legal reasoning?

Because the cowardly anonymous per curiam justices 1). Outright lied about what two of the dissenting justices wrote or thought, 2). Insisted that this opinion was "good for one admission only", 3). Departed from their own prior judicial holdings on standing and proof for equal protection claims (without acknowledging that they were doing so), and 4). Caused the very "constitutional problem" that they insisted had mandated that they stick their noses where they shouldn't have been and take up the case. That's just for starters. Bitch all you want about the jurisprudence of Roe, you won't find any such atrocities there.

Cheers,
 

mls:

... the truth is that there is a much more plausible constitutional justification for the Court’s basic assertion of an authority to intervene in the conduct of a state election contest that would determine the outcome of a presidential election...

No. The constitution leave to the states the "manner of choosing" the electors. It doesn't matter that it is an indirect 'election' for federal office. If it is an 'equal protection' claim (which is what the majority dishonestly hung their hats on), then it doesn't matter what the election is for, whether federal or state office.

Cheers,
 

mls:

... recall that the first Bush v. Gore decision was unanimous ...

This was Dubya v. Palm Beach County (and covered different issues). It was vacated and remanded for clarification, and the essential federal questions were never decided by the U.S. Supreme Court. I'd note that on remand, the Florida courts stuck to their guns.

Cheers,
 

"The constitution leave to the states the "manner of choosing" the electors."

Not so, and this was a key point in the decision: The Constitution leaves to state legislatures the manner of choosing. Not "states".
 

[zuch]: "The constitution leave to the states the 'manner of choosing' the electors."

[Brett]: Not so, and this was a key point in the decision: The Constitution leaves to state legislatures the manner of choosing. Not "states".


Sorry for the shorthand. You are technically correct in your specificity. But: the state legislatures, being a creature of the states, are thus a part of the states, so my original claim is true if not as specific as yours.

But I don't see why your 'clarification' makes any difference here as to my reply to MLS.

If you're talking about the Florida courts versus legislature 'argument', I'd just point out that the Florida legislature did prescribe the "manner" of choosing electors, and that manner included the very court reviews of the prescribed elections that were performed. To insist that the legislature had the power to go back after the fact and prescribe a different manner of choosing such is not a winning argument. The date of choosing electors is prescribed by the Constitution to be "the same throughout the United States", and any actions that would seek to nullify this by ex post facto changes to election law that would upset the previous "manner" of choosing electors in such a way as to affect the outcome would be to in fact "choose" these electors after the specified uniform national date (and an obvious violation of the intent behind the constitutional requirement for a uniform appointment date). Thus the post-election threats of the Florida Republican legislature to go appoint their own slate would have been unconstitutional (despite the fact that they could have legally done such had they done so before the election).

Cheers,
 

Arne- Article II provides that each state shall appoint its electors “in such manner as the Legislature thereof may direct.” The 2000 election raised the difficult issue of who decides if there is a dispute about the manner the legislature had directed.

The Constitution provides that the House and Senate are to be the judges of their respective congressional elections, but it notably does not say this with respect to the presidential election. One possibility is that this leaves the state courts with the final word on the choice of state electors. This result, however, is certainly not suggested by anything in the text of the Constitution and it would seem like an odd result, to say the least, if the Florida Supreme Court was without power to determine the results of Florida congressional elections but had the power to determine the result of the national presidential election. I am not sure that anyone seriously takes this position.

Another possibility that was suggested was that the Florida legislature could act to countermand the decision of the Florida courts. But this has to be wrong, at least to the extent that it implies that the Florida legislature would have an unreviewable power to choose its slate of electors after all of the other states had selected theirs. The Constitution expressly empowers the Congress to set a uniform time of selecting electors, precisely to avoid such dangerous gamesmanship. Thus, whatever the respective roles of the Florida courts and legislature after the election has occurred, it seems obvious that some federal authority must have a reviewing power where there is a dispute about which slate of electors were chosen according to the pre-election rules established by the legislature.

One could argue that the Constitution leaves it up to the Congress to make the final determination in such cases, and that the federal courts play no role. The main problem with this position is the glaring textual omission I mentioned earlier. It still may be that this is the best (least bad?) inference from the constitutional text and structure, but it certainly isn’t a self-evident result. And while I haven’t gone back to look at it in a long time, I believe that the Supreme Court’s decision in what I incorrectly labeled “Bush v. Gore I” unanimously rejected the notion that it had no jurisdiction or role to play in adjudicating the dispute.

Stripped of the legal technicalities and jargon (and I agree that equal protection analysis was an awkward vehicle for the Court to use), the Court was essentially saying to the Florida Supreme Court—“in an ordinary case, state law is whatever you guys say it is. But this is not an ordinary case because of the paramount federal interest in the outcome. So you have to be very careful not to make up new rules that have never existed before, or to apply one set of rules in one county and another set in another county, or generally arrange it so that you are effectively appointing the electors yourselves.”

Now you can criticize the Court with regard to the initial decision and/or the ultimate ruling in Bush v. Gore. You can argue that it should have refused to get involved in the case at all. You can argue that the Florida Supreme Court followed the guidance set forth in the first opinion, or that it came close enough. You can argue that no matter how flawed the Florida Supreme Court rulings, it would have been better to let the process play out. But these are criticisms of an extremely difficult decision made under enormous pressure of time and public scrutiny. To present it as a completely meritless (or, in Professor Tamanaha’s words, “shameful”) decision is simply not fair no matter how many times it is repeated.

And at the end of the day, lets be honest. If the situation had been reversed, and it had been Bush challenging a narrow Gore lead before a state court controlled by Republican appointees, would you really be attacking the Court’s decision to intervene?
 

mls:

"And at the end of the day, lets be honest. If the situation had been reversed, ... "

would Bush/Cheney have been as gracious as Gore?
 

To be honest, many can oppose a ruling strongly even if they support the result on policy or other grounds. And, vice versa.

I put myself in this category. Also, the intervention alone wasn't the problem for some -- it was the method of intervention.
 

Joe- yes, but you are a person of rare intellectual integrity. And a closet Republican, I hear. :)
 

Please keep that on the down lo. Don't want my cover blown.
 

mls:

Arne- Article II provides that each state shall appoint its electors “in such manner as the Legislature thereof may direct.” The 2000 election raised the difficult issue of who decides if there is a dispute about the manner the legislature had directed.

It's not a problem. I think the fine state of Florid --- as have, wisely, many others -- decided to let the courts adjudicate disputes of law. Do you really suggest that the Florida legislature has the power, after the fact, to go in an "clarify" what it meant by , say, a tort statute, and upset a court verdict and restore what it thought should have been the rightful outcome?!?!?

But no: The state of Florida left the resolution of Florida election disputes to the Florida courts ... and did not reserve for themselves a gainsay in this procedure.

The Constitution provides that the House and Senate are to be the judges of their respective congressional elections, but it notably does not say this with respect to the presidential election. One possibility is that this leaves the state courts with the final word on the choice of state electors....

One possibility is that they said that Congress shall "open all the certificates and the votes shall then be counted". It would seem that Congress has some role in deciding what envelopes to accept (for instance, they don't have to accept the certificates that I happen to mail them).

But you're assuming that the state courts were choosing the electors. That they were not doing. They were interpreting state election law as to how to count the ballots.

... This result, however, is certainly not suggested by anything in the text of the Constitution and it would seem like an odd result, to say the least, if the Florida Supreme Court was without power to determine the results of Florida congressional elections but had the power to determine the result of the national presidential election.

What makes you think that Florida courts are without power to rule on Congressional elections? These are also done pursuant to Florida election law (as was Franken's election in Minnesota WRT Minnesota law). And it is true that Congress generally has written rules for how it is to deal with elections (such as asking for certificates of election from the competent state officials). Congress should (and probably would, but you never know with Republicans) defer to state election officials as to their rulings and decisions. Which is what would have happened in Florida: Had the courts asked for a complete manual recount, and that produced a victory for Gore, I suspect that they would have directed Harris to issue a certificate of election to his electoral slate.

[... T]hus, whatever the respective roles of the Florida courts and legislature after the election has occurred, it seems obvious that some federal authority must have a reviewing power where there is a dispute about which slate of electors were chosen according to the pre-election rules established by the legislature.

Huh? Why? Seeing as this is pretty much the topic of the thread (just to get accidentally back on track), the courts can be right even when they're wrong. Why do the federal courts also get an opportunity to be wrong on Florida election law?

Cheers,
 

mls:

One could argue that the Constitution leaves it up to the Congress to make the final determination in such cases, and that the federal courts play no role. The main problem with this position is the glaring textual omission I mentioned earlier. It still may be that this is the best (least bad?) inference from the constitutional text and structure, but it certainly isn’t a self-evident result. And while I haven’t gone back to look at it in a long time, I believe that the Supreme Court’s decision in what I incorrectly labeled “Bush v. Gore I” unanimously rejected the notion that it had no jurisdiction or role to play in adjudicating the dispute.

Huh? What they said was that they wanted clarification as to whether the supposed Article 2 issues and/or 3 USC § 5 issues had played (or should play) any role in their decision. Their answer, BTW, was "no", and the U.S. Supreme Court took no further action on this line of 'argument'.

Stripped of the legal technicalities and jargon [...] the Court was essentially saying to the Florida Supreme Court—“in an ordinary case, state law is whatever you guys say it is. But this is not an ordinary case because of the paramount federal interest in the outcome. So you have to be very careful not to make up new rules that have never existed before, or to apply one set of rules in one county and another set in another county, or generally arrange it so that you are effectively appointing the electors yourselves.”

You meant "Republican" there. But Dubya v. Gore mandated that "one set of rules [would apply] in one county and another set in another county". This single fact proved the ultimate intellectual dishonesty of Dubya v. Gore. They caused the very violation that they insisted "demand[s] a remedy". Normally, when a court cannot provide relief (as here the per curiam ultimately decided they could not), they refuse to take the case for lack of jurisdiction. That they did not do ... but they provided no remedy other than to insist that Dubya be named preznit (much to our misfortune).

Cheers,
 

Brian:

Or, put another way, remember Bush v. Gore?By almost all accounts, Bush v. Gore was an embarrassing failure of legal analysis, a historic stain on the court to the enduing shame of the five who signed on.

Oh c'mon Brian. Consensus among whom?

To recap, seven of nine held that having four selected counties recount votes using four different methods - none of which complied with Florida statute - violated the EPC. Requiring uniformity in vote counting is basic voting rights law with a great deal of precedent behind it.

The majority split 5-2 on one issue - whether to permit Florida Dems in these counties a third bite at the apple to find a "legal" way to manufacture votes for Al Gore or to shut the entire fraudulent process down. The five made the right decision in shutting the process down as later audits of the votes failed to find the Gore ballots local Dems were discovering by hook or crook.

Bush won, Gore lost, get over it already!

To find an actual "embarrassing failure of legal analysis, a historic stain on the court to the enduing shame of the five who signed on," you only have to go to last year's Boumediene case or the prior Kelo case.
 

Bart:

To recap, seven of nine held that having four selected counties recount votes using four different methods - none of which complied with Florida statute - violated the EPC.

To recap: This is an outright bald-faced lie.

But Bart's no stranger to getting holdings wrong.

Cheers,
 

More lies:

The majority split 5-2 on one issue - whether to permit Florida Dems in these counties a third bite at the apple to find a "legal" way to manufacture votes for Al Gore or to shut the entire fraudulent process down....

"5-2", eh?

The five made the right decision in shutting the process down as later audits of the votes failed to find the Gore ballots local Dems were discovering by hook or crook.

Also false (see the consortium recounts) ... and irrelevant. The propriety of the recounts was not dependent on who was voted for ... except in Rethuglican BizarroWorld.

Cheers,
 

Bart:

To recap, seven of nine held that having four selected counties recount votes using four different methods - none of which complied with Florida statute - violated the EPC. Requiring uniformity in vote counting is basic voting rights law with a great deal of precedent behind it.

Which explains why the U.S. Supreme Court left the certified counts with the M/D, Broward, Volusia, and Palm Beach recounts (which seem to bother Bart here) intact, but did nothing to ask that all counties be recounted uniformly under a single judge and standard (which is what the Florida Supreme Court ordered but which the U.S. Supreme Court first enjoined and then stopped permanently).

Cheers,
 

Arne- it is true that state courts can hear election contests with respect to congressional races. It is also true that Congress is free to ignore what the state courts do. It can conduct its own factual investigation and hearing. It can disregard the state court’s legal rulings as to state law. It can preempt the state court proceedings entirely, and take possession of the ballots before the state court has completed its review. And it actually has done all of these things.

If you believe that Congress has a like power with regard to presidential elections, then Congress could have disregarded the decision of the Florida courts (or, for that matter, the Supreme Court). In fact, however, the nature of a presidential election would make it highly dangerous if Congress were to exercise this kind of power. This is not to say that Congress could not do so if it had no other choice—but the Supreme Court intervened, in part, to prevent the situation from getting to that point.

You seem to be operating under the assumption that the Florida Supreme Court majority was engaging in good faith and reasonable interpretations of Florida law, while everyone else (the Supreme Court majority, the Florida Supreme Court dissenters and lower courts, the Florida legislature, etc) was acting on corrupt and partisan motives. This is a comforting assumption, and makes it easy to reach the desired conclusion. But if you would try to be just a teeny bit objective, perhaps you could see things were more complicated. My own recollection, and I attended both arguments, is that the members of the US Supreme Court, including some of those who ended up as dissenters, were rather skeptical of how the Florida Supreme Court was handling the case and were very aware of the possibility that the Florida justices could use their power to “interpret” state law to select their preferred slate of electors. Perhaps you find it impossible to see this risk, which is why I suggested you try to imagine the situation with the parties reversed, where a Republican majority on a state court was “interpreting” the law in such a way that threatened the narrow margin of victory apparently won by a Democratic slate of electors.

It is by no means clear what would have happened if the Supreme Court had let the Florida recount continue. One possibility (probably the most likely based on what we know now) is that the recount would have ultimately confirmed Bush’s victory, which would have been preferable from the standpoint of democratic legitimacy. On the other hand, there is a non-trivial possibility that the Florida Supreme Court could have issued a series of questionable rulings that led to its declaring Gore the winner (or that the process could have dragged on past the date on which electors voted). I seriously doubt that this would have resulted in Florida state officials compliantly issuing a certificate of election (my recollection is that the Governor, rather than just the Secretary of State, is required to certify presidential electors) in accordance with the Florida Supreme Court’s decision and Congress accepting this certificate. More likely, there would have been a constitutional impasse that could have continued indefinitely (Denny Hastert was prepared to assume the presidency temporarily, BTW), and probably would have wound up right back at the US Supreme Court.

So while I can understand that liberals want to vent their spleen at the Bush v. Gore majority (and conservatives would certainly do the same if the situations were reversed), I think the criticisms are vastly overstated.
 

mls suggests to Arne:

"But if you would try to be just a teeny bit objective, perhaps you could see things were more complicated."

as if to demonstrate that mls is objective more than just a tad with his "mugwampian" exploration of events at which he claimed to be present. Next we might expect mls to provide support for CJ Taney's Dred Scott decision as a recognition of originalism although surely mls would dread the plight of Taney's victims. Bush v. Gore was a variation on Mr. Dooley's take on the Supreme Court whereby the Court created (rather than followed) the "iliction" returns. And look at the 8 years that got us (including Heller)..
 

If I recall correctly, the Florida legislature was preparing to order the original set of electors selected, on the grounds that what the Florida courts were doing was no longer in compliance with the procedure the legislature had chosen, when the Supreme court rendered the move moot.

Supposing the Supreme court had not acted, it's reasonable to expect that the Florida supreme court would have continued on it's way, rolling the dice repeatedly until it got the outcome it wanted. (The partial statewide count the Supreme court interrupted, after all, was to supplant the outcome of the Florida court's own earlier remedy.) The House would then have been presented with two sets of electors from Florida, and had to chose between them. Given the political breakdown at the time, that would probably have been the Bush electors.

That's the constitutional procedure we SHOULD have followed. The Supreme court was right to see a problem in California, but they should have recognized that it wasn't their problem to fix.
 

I haven't read Brian's new book - noted on the right of the home page of this Blog - and wonder if it might add to this and the related preceding threads on the role of politics in judging.
 

As to the book, it has received some good press over what I sort of consider the opposite number of this blog, Volokh Conspiracy.

Amazon has a review that suggests at least a tangential connection: "He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism."
 

mls:

If you believe that Congress has a like power with regard to presidential elections, then Congress could have disregarded the decision of the Florida courts (or, for that matter, the Supreme Court). In fact, however, the nature of a presidential election would make it highly dangerous if Congress were to exercise this kind of power.

Wouldn't have stopped the Republicans. ;-)

Cheers,
 

mls:

You seem to be operating under the assumption that the Florida Supreme Court majority was engaging in good faith and reasonable interpretations of Florida law, while everyone else (the Supreme Court majority, the Florida Supreme Court dissenters and lower courts, the Florida legislature, etc) was acting on corrupt and partisan motives....

Why do you say this. I've explained why I thought the U.S. Supreme Court majority was dishonest. The rest is sheer speculation on your part, unsupported by anything I've said here.

... My own recollection, and I attended both arguments, is that the members of the US Supreme Court, including some of those who ended up as dissenters, were rather skeptical of how the Florida Supreme Court was handling the case ...

Huh?!?!?! Since when? Breyer, for instance, expressed supreme confidence that the Florida courts could handle an EP issues "if and when" they were found to have mattered.

... and were very aware of the possibility that the Florida justices could use their power to “interpret” state law to select their preferred slate of electors....

Ummm, how?!?!?! Did they peek at the uncounted ballots? Are you saying that the uncounted ballots would have preferred a particular candidate?

It is by no means clear what would have happened if the Supreme Court had let the Florida recount continue. One possibility (probably the most likely based on what we know now) is that the recount would have ultimately confirmed Bush’s victory, which would have been preferable from the standpoint of democratic legitimacy. On the other hand, there is a non-trivial possibility that the Florida Supreme Court could have issued a series of questionable rulings that led to its declaring Gore the winner (or that the process could have dragged on past the date on which electors voted)....

Wow. it might have been that the count would have bolstered Dubya's legitimacy or, alternatively, it might have reached a questionable outcome affirming Gore the winner. No other possibilities, eh?

... I seriously doubt that this would have resulted in Florida state officials compliantly issuing a certificate of election (my recollection is that the Governor, rather than just the Secretary of State, is required to certify presidential electors) in accordance with the Florida Supreme Court’s decision and Congress accepting this certificate....

They may well have ignored the court (this is always a possibility in a gummint run by mortal humans). At their peril.

... More likely, there would have been a constitutional impasse that could have continued indefinitely (Denny Hastert was prepared to assume the presidency temporarily, BTW), and probably would have wound up right back at the US Supreme Court.

Hastert could "assume the position", and I wouldn't care a fig (other than laugh at him and his cluelessness and naked Haigesque lust for power). There is absolutely no Constitutional provision for him to do such a thing.

But this could happen whether or not the Supes acted (unless you assume that only one party would be willing to do such a thing).

So while I can understand that liberals want to vent their spleen at the Bush v. Gore majority (and conservatives would certainly do the same if the situations were reversed), I think the criticisms are vastly overstated.

Nope of your above "pragmatic" defence (which Posner also put forth) justifies what the anomymous per curiam did. If they were going to rule for Dubya, they might have made an honest effort of it, rather than that cacologue they produced.

My criticisms of the Dubya v. Gore majority opinion are very explicit. Care to actually address them some time between now and eternity?

Cheers,
 

Brett:

If I recall correctly, the Florida legislature was preparing to order the original set of electors selected, on the grounds that what the Florida courts were doing was no longer in compliance with the procedure the legislature had chosen, when the Supreme court rendered the move moot.

They have no power to do that. They may change the procedure (the election law), but they can't change the rules ex post facto in order to achieve the specific outcome they desire. At least not without risking penalty under 3 USC § 5. ;-)

Cheers,


Cheers,
 

Brett:

Supposing the Supreme court had not acted, it's reasonable to expect that the Florida supreme court would have continued on it's way, rolling the dice repeatedly until it got the outcome it wanted.

With 5 of the 7 Florida Supreme Court justices appointed by Republicans?!?!? Why would you suppose that?

Cheers,
 

An opera for Bush v. Gore?
 

Arne- you think that the Bush v. Gore majority was “dishonest” because it was stretching the law to reach a result it favored for other reasons. Ok, but that is exactly what the Florida Supreme Court was accused of (by the dissenters on that court, among others), and what led SCOTUS to intervene in the first place. You want to indulge your suspicions where convenient and ignore equally reasonable suspicions that are inconvenient.

I take it that your “specific” criticisms of the Bush v. Gore opinion are that the majority misrepresented the views of the dissenters and failed to follow applicable precedent. Given that the Supreme Court reports are chockfull of justices accusing each other of doing those things, these are not exactly charges of earthshaking dimension. Since these points are also irrelevant to the position that I have expressed here, I don’t feel any obligation to address them one way or the other. As I believe I already indicated, I did not find the majority’s equal protection analysis particularly convincing.

Finally, your point about action of the Florida legislature risking a “penalty” under 3 USC 5 is an interesting one. If you believe that Florida’s choice of electors was governed by federal law, including 3 USC 5 (and 3 USC 2), then some federal body must have had the authority to enforce those laws. That body would have to decide whether Florida’s actions, including the actions of the Florida Supreme Court and the Florida legislature, complied with federal law.

Now it is possible to argue, as Brett and (I think) you do, that Congress has the sole authority to enforce these laws. This is a perfectly reasonable position, IMHO. However, I think it is also entirely reasonable to conclude that the federal courts have the authority to enforce them. And if that is the case, it was not beyond the pale for SCOTUS to intervene and, if it concluded that the Florida Supreme Court was not in compliance with 3 USC 5, to order a halt to the recount.
 

you think that the Bush v. Gore majority was “dishonest” because it was stretching the law to reach a result it favored for other reasons. Ok, but that is exactly what the Florida Supreme Court was accused of (by the dissenters on that court, among others), and what led SCOTUS to intervene in the first place. You want to indulge your suspicions where convenient and ignore equally reasonable suspicions that are inconvenient.

Wow, postmodernism has become the new religion on the political right. Are you seriously suggesting that we should just note the disagreement without regard for the merits of two positions?
 

mls:

Arne- you think that the Bush v. Gore majority was “dishonest” because it was stretching the law to reach a result it favored for other reasons.

No. I explained clearly in my first post here why I thought it was dishonest (and I told you that in my last post). How many times do I have to explain it until you understand?

Ok, but that is exactly what the Florida Supreme Court was accused of (by the dissenters on that court, among others), and what led SCOTUS to intervene in the first place.

Only if the SCOTUS was being dishonest in what they wrote (they made other claims as to why they had to intervene). ;-)

I take it that your “specific” criticisms of the Bush v. Gore opinion are that the majority misrepresented the views of the dissenters and failed to follow applicable precedent. Given that the Supreme Court reports are chockfull of justices accusing each other of doing those things, these are not exactly charges of earthshaking dimension.

Not exactly. There are charges of dishonesty, intellectual sloppyness and lassitude, and "straw men" aplenty (although not in every case or even most cases, by a mile), but never such overt and definitive insistence that the opposing judges said what they clearly did not say. And if such occurs in other opinions, it is dishonest as well ... not a tu quoque "get out of jail free" card for U.S. Supreme Court justices.

But what is worse is others insisting on taking the majority's statements as true as to what the opinions of the dissenters is, when the dissenters are unarguably the best source for this.

Since these points [Arne's] are also irrelevant to the position that I have expressed here...

... then why did you bother replying to me? I was just pointing out the reasons why Dubya v. Gore was such a horrible decision (as Prof. Tamanaha stated in the OP), and if you want to talk about something else, get on with it, and I'll leave you alone.

Finally, your point about action of the Florida legislature risking a “penalty” under 3 USC 5 is an interesting one.

No. It was just a jab at the other side that cried "Alors!" at the travesty of an alleged potential 3 USC § 5 violation and the dire consequences thereof (and thus the need to stop any actual review of the election and vote count, which of course they had no other reason to stop).

If you believe that Florida’s choice of electors was governed by federal law, including 3 USC 5 (and 3 USC 2), then some federal body must have had the authority to enforce those laws. That body would have to decide whether Florida’s actions, including the actions of the Florida Supreme Court and the Florida legislature, complied with federal law.

The only ones making new rules would have been the legislature. They're the ones empowered to do such.

I'd note that it's up to the state legislatures to say whether they intend to take advantage of the "safe harbour" provision of 3 USC § 5. No state is required to do so. Florida did not do such a thing.

Cheers,
 

Mark- no, that is not what I am suggesting. I am suggesting that a fair evaluation of the Supreme Court’s decision has to consider the actual facts and circumstances the Court faced. My premise is that the Florida Supreme Court had gone beyond the point where there was any previously existing law to guide its actions, and was making up rules as it went along. I understand that courts are in this situation all the time, but this begs the question—should a state court be entrusted with making discretionary decisions, informed by nothing more than each judge’s sense of what seems fair, that will determine the outcome of a presidential election? And does the federal court have the authority to step in if it believes the state court is acting in an arbitrary manner, violating state law and/or applying rules that did not exist at the time of the election?

I think these are extremely difficult questions that SCOTUS had to address under extremely difficult circumstances. I haven’t faulted anyone for disagreeing with the Bush v. Gore decision, only for claiming that the decision was so clearly wrong that it must have been issued for improper partisan motives.
 

I forgot complaint #5 about Dubya v. Gore:

They decided on the 'facts' of the case (the "equal protection violation") before the development of any factual record on which to base this.

As I noted above, they seemed to dislike the partial recounts (done by each county by their own procedures) [and should have also disliked the initial counts done by different machinery and procedures in the various counties to begin with, were they honest], BUT THEY LEFT THESE COUNTS STAND!!!

What they stopped was a statewide recount, which could well have been done under uniform standards and procedures (or as best such could be done with varying methods of balloting), which hadn't even begun yet. IOW, they indicted Peter and jailed Paul.

This was also dishonest. They should have waited for a factual record to work from before deciding the yet-to-be-done statewide count was unconstitutional (he dissents, of course, pointed this out ... but everyone ignored that). Of course, that would have frustrated their ultimate goals....

Cheers,
 

"What they stopped was a statewide recount, which could well have been done under uniform standards and procedures."

If, and only if, the people conducting the count had spontaneously decided to do it under uniform standards and procedures. The Florida supreme court was asked to set such uniform standards and procedures, and flatly refused. It was going to be just exactly what the Florida court wanted: A nightmare of subjectivity, and the candidate with the most brazen supporters would win.
 

Brett:

[zuch]: "What they stopped was a statewide recount, which could well have been done under uniform standards and procedures."

If, and only if, the people conducting the count had spontaneously decided to do it under uniform standards and procedures.


No. Your error is highlighted. Take that away, and we have: Yes, it could have been done under uniform standards and procedures. It was possible.

The Florida supreme court was asked to set such uniform standards and procedures, and flatly refused.

Huh? Where'd you get this? Are you making stuff up?

It was going to be just exactly what the Florida court wanted: A nightmare of subjectivity, and the candidate with the most brazen supporters would win.

You know this how?!?!? Are you using "subjective" standards of "proof" here for the truth of your assertion?

FWIW, if (for purposes of argument) it was the candidate with "the most brazen supporters" that would win, what are you afraid of? Don't you remember the Brooks Brothers"Rent-A-Riot" you folks had lined up?

Cheers,
 

My premise is that the Florida Supreme Court had gone beyond the point where there was any previously existing law to guide its actions, and was making up rules as it went along.

If you start from a false premise, you can prove anything at all.
 

mls:

And does the federal court have the authority to step in if it believes the state court is acting in an arbitrary manner, violating state law [...]?

When it's Florida state law, and it's the Florida Supreme Court they think is doing it ... Nooooo!!!! They have as much jurisdiction to decide that as do you or I. Which is to say, none.

It's just further hypocrisy of the conservatives that they bitch and moan about state sovereignty and state's rights, but are more than willing to trample that in the most egregious and unarguable manner when it suits their ultimate designs.

Cheers,
 

re: my last comment

In fairness to the per curiam majority (but not the trusty troika of Rehnquist, Scalia, and Thomas), they didn't say they had the power to review bad decisions of Florida state law. Which is why they manufactured the bogus "EP violation". Granted, it is possible that the unstated motivations for taking the case are as MLS suggested.

Cheers,
 

Arne, the problem of "standardless manual recounts" was one of the issues before the Court in Bush v Gore, and they went on at some length concerning the matter in the decision. It was, after all, at the heart of the equal protection violation they found. To quote briefly from that decision,

"As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another."

You'd just about have to have slept through the controversy to not be aware that this was an issue. Bush's legal team asked that the partial statewide recount be assigned a counting standard, ANY counting standard, so long as it was uniform. The Florida court refused.
 

Brett,

Bush's legal team asked that the partial statewide recount be assigned a counting standard, ANY counting standard, so long as it was uniform. The Florida court refused.

Compared to Arne, I know very little about Bush v Gore. But I have a pretty good idea that Bush's team made the request you cite precisely because it was unattainable.

How do you have uniform standards across different voting machines and ballots? Bush's team was manufacturing an issue.
 

They made the request because they'd seen the way the recount played out in the four counties Gore handpicked, with the counting standard changing from day to day, even hour to hour, as they tried to tune it in to maximize the production of Gore votes. Their nightmare was a count where Bush ballots were counted to one standard, and Gore ballots to a different one, depending on the political preferences of the people doing the counting. The Florida supreme court's orders practically guaranteed that nightmare.

There was nothing stopping the Florida supreme court from setting a uniform standard for each voting technology.

And I repeat, you'd have had to have slept through the controversy to have not known this was an issue. It was practically THE issue in Bush v Gore.
 

In further response to mls' efforts to drag in Roe v. Wade, take a look at Sherry F. Colb's 1/6/10 column at FindLaw titled: "Abortion in Israel and the United States: A Lesson in Qustioning Asumptions" at:

http://writ.news.findlaw.com/colb/20100106.html

Some might say that the SCOTUS "five" applied a form of political abortion in Bush v. Gore that gave us 8 years of you know what.
 

This comment has been removed by the author.
 

Brett:

Arne, the problem of "standardless manual recounts" was one of the issues before the Court in Bush v Gore, and they went on at some length concerning the matter in the decision. It was, after all, at the heart of the equal protection violation they found.

But we've already determined that there could have been uniform standards for the counts yet to be performed that was the subject matter of the injunction and the Dubya v. Gore case. Don't you think that the majority could have waited for an actual factual record to be developed before deciding (incorrectly) that such was impossible?

[The per curiam] went on at some length concerning the matter in the decision. It was, after all, at the heart of the equal protection violation they found. To quote briefly from that decision,

"As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another."

You'd just about have to have slept through the controversy to not be aware that this was an issue.


But that was the counts already performed. But, as I pointed out, this is precisely what they left stand. Doesn't it seem curious to you that they should prevent a future and different count that might pass Constitutional muster (in their eyes), yet allow to stand the very thing that they insist is a horrible EP violation?!?!? Please explain the sense in this. This is one of the most fundamental dishonesties about the per curiam decision. It's almost as if they weren't even trying ... other than to cure the problem that occasioned a remark from O'Connor: "This is terrible!"

Cheers,
 

Brett:

Bush's legal team asked that the partial statewide recount be assigned a counting standard, ANY counting standard, so long as it was uniform. The Florida court refused.

A cite for this? Thanks in advance.

And what "partial state recount"? Are we talking the protest phase cases or the contest phase?

Cheers,
 

Brett:

Their nightmare was a count where Bush ballots were counted to one standard, and Gore ballots to a different one, depending on the political preferences of the people doing the counting.

Their nightmares are not justiciable. Nor are their hysterics. State law provides for the procedures for recounting ballots and resolving disputes. Are you suggesting that the recounts not follow state law?

There was nothing stopping the Florida supreme court from setting a uniform standard for each voting technology.

Other than the fact that the Florida election laws didn't provide for a role of the Florida Supreme Court in setting election procedures, and the bogus 3 USC § 5 issue was used to scare the court off from getting too deep into the mechanics. Had the Florida Supreme Court intervened and drawn up rigid procedures, Dubya's lawyers would have been right back in court screaming "3 USC § 5! 3 USC § 5!!!". Regardless, the future recounts were on notice to apply uniform standards, and that was what Judge Lewis was going to do. As I have repeatedly said, the time to litigate the statewide recounts is after they've been performed, so we're not discussing "woulda, coulda" and moonbeams. But that wouldn't have served the purposes of the per curiam.

Cheers,
 

Here's the latest PEGC Update in case anyone is interested...

PEGC Update - 2010.01.05
 

Thanks for straightening me out, Arne.

And btw, you rule!
 

Since the Bush v. Gore decision, what has been its place in ConLaw casebooks and classes? How does Bush v. Gore contribute to train law students in better understanding the Constitution? Many of us were wide awake following the 2000 presidential election in real time from early November to the rendering of Bush v. Gore via all forms of media, a very short period of time, just a couple of months. Those of us who lived through it have had quite a bit of background. But what of current or future ConLaw students - will they consider the background to the same extent? The process was time-pressured so that the inauguration could take place on 1/20/01, as the Constitution was not clear on what would happen if the Court did not resolve the matter on a timely basis. To a certain extent, it could be said there was a rush to judgment. But at what price? Who can deny that politics was not involved in the process, including the 5-4 decision?

I wonder if ConLaw profs have been surveyed on this.

And consider how long it took for Al Franken to be seated in the Senate. There were threats, or suggestions, that that process would be lengthened via federal appeals up to SCOTUS. Apparently in the length of time it took, careful counting could take place.

Maybe Bush v. Gore will be a ConLaw blip, more of a political science interest.
 

Shag from Brookline:

zThe process was time-pressured so that the inauguration could take place on 1/20/01, as the Constitution was not clear on what would happen if the Court did not resolve the matter on a timely basis. To a certain extent, it could be said there was a rush to judgment.

In the 1960 election, the selection of the Hawai'i electoral slate wasn't resolved until January of 1961. I don't see any problems with taking the time to get things right.

Cheers,
 

Me neither, Arne, but was the Hawaii electoral votes going to change anything? Franken is also somewhat different -- one senator not being in place for months is different than one president.

Anyways, the 20A addresses a scenario of things still being up in the air on 1/20. The length of time it took to decide things in 1800 underlined a possibility of some time lag.

But, the nameless per curiam saved us from that. Focus could go back to bowl games or whatever.
 

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Since Prof. Tushnet didn't enable comments to his latest post, I'm adding this here.

The Democrats can't change the filibuster or hold rules because (a) the Senate rules state that they carry over from one Senate to the next; and (b) the rules can be changed only by following the existing procedures (meaning that rules changes can be filibustered).
 

Actually, changes to the Senate Rules require a two-thirds supermajority. It is a little unclear whether Professor Tushnet is proposing that the Senate Democrats use the "nuclear option" (ie, overthrow the existing rules by having the chair establish new precedents that allow the majority to circumvent the filibuster) or whether he is unaware of how the rules actually work.
 

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