COURT CASES OF NOTE 2006-2007
Who were the winners and
Former V-P Al Gore; Congressman Shays and
Kay Maxwell; Washington D.C. crowd.
The Supreme Court of the United States: previously...
High Court In For Another Eventful Term; Hot-button issues are
looming, again with Kennedy in the middle
By Robert Barnes, The Washington Post
Published on 10/1/2007
Washington — After a bruising term that featured more close decisions
and ideological splits than in its recent history, the Supreme Court
begins its new term Monday with more of the same: emotional, complex
and sometimes partisan issues that divide the justices as well as the
The court's high-profile agenda features a fourth examination of how
the Bush administration and Congress deal with terrorism detainees, a
separation-of-powers case that tests the limits of a president's power,
and a host of discrimination and employment law cases. Last week,
justices added the constitutionality of lethal injection to the list
and said they would, in the midst of the 2008 presidential election,
decide a fiercely partisan battle on voting rights.
Waiting in the wings from the District of Columbia is a potential
showdown on the meaning of the Second Amendment and gun rights.
“The court is showing a willingness to keep on taking these kinds of
issues even though they are going to be divisive,” said Richard
Garnett, a law professor at the University of Notre Dame and former
clerk to the late chief justice William Rehnquist.
But if there is a difference this year, it could be that the court —
balanced with four reliable conservatives, four reliable liberals and
one man in the middle with an outsized influence — might teeter
occasionally more to the left.
That is because Justice Anthony Kennedy's starring role last term — he
was the only justice in the majority in each of the court's record
number of 5 to 4 decisions — seems likely for an encore but in a
While Kennedy's conservative views on abortion and campaign finance
laws grabbed attention then, “the menu for this term is shaping up to
be the other way around,” Garnett said. For instance, Kennedy has voted
against the government in each of the detainee cases the court has
heard, and his past opinions signal the central role he is likely to
play again in other areas.
“This current court is going to be about as conservative or about as
liberal as Justice Kennedy,” Solicitor General Paul Clement, who
represents the federal government before the court, said in a speech
“The court (last term) had a number of cases — important, high-profile
cases — where Justice Kennedy's jurisprudence” happened to match that
of Chief Justice John Roberts Jr. and the other conservatives, Clement
said. “But there are certain other areas that have been, and will be
again, where Justice Kennedy's jurisprudence is like that of Justice
(John Paul) Stevens” and the court's other liberals.
One thing is certain, the term will tell much about the still-evolving
nature of the court — Roberts has just passed his two-year anniversary
on the bench, and the newest justice, Samuel Alito Jr., has served only
20 months. The still-new chief justice has established clear
conservative credentials but has fallen short in his search for more
unanimity on decisions.
Roberts is only two months away from a scary incident that made the
chief justice the lead story in newspapers and network news shows, when
he suffered a seizure at his vacation home in Maine on July 30.
Roberts continued his vacation after a night's stay at the hospital and
has looked hale at recent public appearances, two speeches at
universities and a judicial conference in Canada. He has not talked
about the incident publicly, and a court spokeswoman said last week
that he had no comment about what follow-up tests might have revealed
or whether he is taking medication.
Roberts' role on the court and the justices' decisions this term will
be seen through the prism of the 2008 elections.
The justices themselves hate being lumped into groups: Roberts, Alito
and Justices Antonin Scalia and Clarence Thomas on the right, Stevens
and Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer on
the left. They frequently point to areas of the law, such as
sentencing, or to many business cases, where opinions are often
lopsided, or at least the usual alignments are scrambled.
But the great majority of last term's 5 to 4 decisions broke along
those patterns, with Kennedy voting twice as often with the
conservatives as with the liberals. And the end of the term was
particularly fractious, with the four liberals taking turns reading
sharp dissents from the bench.
“I think last June they were pretty happy to get away from each other,”
said Carter Phillips, a top Supreme Court practitioner at the law firm
Many Democrats and liberal activist groups are eager to make the
court's more conservative stance last year a theme for 2008, saying it
is important to have Democrats in charge of the White House and Senate
when the next vacancy on the court occurs.
But Thomas Goldstein, who heads Akin Gump Strauss Hauer and Feld's
Supreme Court practice, wrote a provocative post for ScotusBlog.com
arguing that the controversial cases on the court's agenda this year
might aid conservatives in making the court an issue.
“The leading cases will be ones in which the more liberal position is
distinctly — even profoundly — unpopular with conservatives,” Goldstein
wrote. “Even if the left ultimately does not win all of the five most
significant cases of this Supreme Court term, that wing of the court
will carry the banner for accused terrorists, crack dealers, child
pornographers, child rapists, and those who want to forbid gun
And besides that, conservative activists — wary of Kennedy's ability to
side with either wing of the court, depending on the issue — have never
been as enamored of the court's work last year as liberals were
“It's a pretty good court,” said John Choon Yoo, the former Justice
Department official who was a leader in advocating the Bush
administration's expansive view of presidential power in wartime. “But
it's not everything promised.”
Supreme Court to Hear
Voter ID Case
By MARK SHERMAN | Associated Press Writer
10:47 AM EDT, September 25, 2007
WASHINGTON - The Supreme Court agreed Tuesday to decide whether voter
identification laws unfairly deter the poor and minorities from voting,
stepping into a contentious partisan issue in advance of the 2008
The justices will hear arguments early next year in a challenge to an
Indiana law that requires voters to present photo ID before casting
their ballots. The state has defended the law as a way to combat voter
The state Democratic party and civil rights groups complained that the
law unfairly targets poor and minority voters, without any evidence
that in-person voter fraud exists in Indiana. The party argued that
those voters tend to be Democrats.
Courts have upheld voter ID laws in Arizona and Michigan, but struck
down Missouri's. Earlier this month, a federal judge dismissed a
challenge to Georgia's voter identification law, saying the statute
does not impose a significant burden on the right to vote.
Election law experts had urged the court to take the Indiana case to
instruct courts on how to weigh claims of voter fraud versus those of
disenfranchisement. "The court better resolve this question before
ballots start getting counted next fall," said Stanford University law
professor Pamela Karlan.
The court is expected to issue a decision by late June, in time for the
November general election.
The Indiana law enacted in 2005 was upheld by a federal judge and by
the 7th U.S. Circuit Court of Appeals in Chicago. Before the law's
passage, an Indiana voter had only to sign a poll book at the polling
place, where a photo copy of the voter's signature was kept on file for
"The purpose of the Indiana law is to reduce voting fraud, and voting
fraud impairs the right of legitimate voters to vote by diluting their
votes," Judge Richard Posner said in his majority opinion.
But in a dissent, Judge Terence Evans said, "Let's not beat around the
bush. The Indiana voter photo ID law is a not-too-thinly veiled attempt
to discourage election-day turnout by folks believed to skew
The voter ID challenge was among 17 new cases accepted by the court in
advance of the start of its new term on Monday.
The cases are Crawford v. Marion County Election Board, 07-21, and
Indiana Democratic Party v. Rokita, 07-25.
A Setback For
Hartford Courant editorial
April 20, 2007
Women's hard-won equality eroded with the U.S.
Supreme Court's ominous 5-4 decision Wednesday to bar a certain type of
late-term abortion, regardless of consequences to the mother's health.
Justices Anthony M. Kennedy, John Roberts, Samuel A. Alito, Antonin
Scalia and Clarence Thomas upheld a law passed by Congress in 2003 and
overturned by six lower courts. The law makes it a crime for doctors to
perform what opponents call partial-birth abortion.
In reality, this is a rarely used medical procedure termed Intact
Dilation and Extraction. It is a gruesome procedure when described
objectively, but so are other sometimes necessary medical treatments.
Graphic scare tactics are a favorite ploy of anti-abortion zealots, but
they are not an appropriate way to gauge medical necessity.
Justice Kennedy, writing for the majority, said the decision did not
rob women of their constitutional right to abortion, as there are legal
alternatives. But the decision makes it likely that those alternatives
will be challenged. He cited Congress as an authority in concluding
that the banned procedure was "never" medically necessary.
People with neither a uterus nor a medical degree have no authority to
make that judgment. To eliminate a medical option, however rare, is a
dangerous precedent, not to mention unconscionable. Ruth Bader
Ginsburg, in her strong dissenting opinion, was appropriately outraged.
"Today's decision ... tolerates, indeed applauds, federal intervention
to ban nationwide a procedure found necessary and proper in certain
cases by the American College of Obstetricians and Gynecologists."
The sole woman justice had another reason for fulminating against her
colleagues who put a fetus's health above the mother's. Justice Kennedy
wrote that the ban was good for women because it protected them from
having a procedure that they may not "fully understand" and would "come
later to regret."
How patronizing. How galling. Justice Ginsburg, a living example of the
equality of women and the strides they have made, was quick to point
out that this thinking harks back to the turn-of-the-century
paternalistic view of females as too dependent to make their own
The new court without the level-headed Sandra Day O'Connor is
undermining a woman's right to choose. Congress must stop this
unacceptable trend. Amend the 2003 law to leave room for medical
judgment about the health of the mother. Better yet, overturn the ban
entirely. It ties doctors' hands and sets a horrible precedent by
politicizing medical treatment.
High Court Bans
Partial-Birth Abortion; 5-4 ruling could be
stepping stone for further erosion of Roe v. Wade
By Mark Sherman, Associated Press Writer
Published on 4/19/2007
Washington — The Supreme Court's new conservative majority gave
anti-abortion forces a landmark victory Wednesday in a 5-4 decision
that bans a controversial abortion procedure nationwide and sets the
stage for further restrictions.
It was a long-awaited and resounding win that abortion opponents had
hoped to gain from a court pushed to the right by President Bush's
For the first time since the court established a woman's right to an
abortion in 1973, the justices said the Constitution permits a
nationwide prohibition on a specific abortion method. The court's
liberal justices, in dissent, said the ruling chipped away at abortion
The 5-4 decision written by Justice Anthony Kennedy said the Partial
Birth Abortion Ban Act that Congress passed and Bush signed into law in
2003 does not violate a woman's constitutional right to an abortion.
Siding with Kennedy were Bush's two appointees, Chief Justice John
Roberts and Justice Samuel Alito, along with Justices Antonin Scalia
and Clarence Thomas.
The law is constitutional despite not containing an exception that
would allow the procedure if needed to preserve a woman's health,
Kennedy said. “The law need not give abortion doctors unfettered choice
in the course of their medical practice,” he wrote in the majority
Doctors who violate the law could face up to two years in federal
prison. The law has not taken effect, pending the outcome of the legal
In dissent, Justice Ruth Bader Ginsburg said the ruling “cannot be
understood as anything other than an effort to chip away at a right
declared again and again by this court.”
Dr. LeRoy Carhart, the Bellevue, Neb., doctor who challenged the
federal ban, said, “I am afraid the Supreme Court has just opened the
door to an all-out assault on” the 1973 ruling in Roe v. Wade.
The administration defended the law as drawing a bright line between
abortion and infanticide.
Reacting to the ruling, Bush said that it affirms the progress his
administration has made to defend the “sanctity of life.”
“I am pleased that the Supreme Court has upheld a law that prohibits
the abhorrent procedure of partial birth abortion,” he said. “Today's
decision affirms that the Constitution does not stand in the way of the
people's representatives enacting laws reflecting the compassion and
humanity of America.”
It was the first time the court banned a specific procedure in a case
over how — not whether — to perform an abortion.
Abortion rights groups as well as the leading association of
obstetricians and gynecologists have said the procedure sometimes is
the safest for a woman. They also said that such a ruling could
threaten most abortions after 12 weeks of pregnancy, although Kennedy
said alternate, more widely used procedures remain legal.
The outcome is likely to spur efforts at the state level to place more
restrictions on abortions.
“I applaud the Court for its ruling today, and my hope is that it sets
the stage for further progress in the fight to ensure our nation's laws
respect the sanctity of unborn human life,” said Rep. John Boehner of
Ohio, Republican leader in the House of Representatives.
Jay Sekulow, a prominent abortion opponent who is chief counsel for the
conservative American Center for Law and Justice, said, “This is the
most monumental win on the abortion issue that we have ever had.”
Said Eve Gartner of the Planned Parenthood Federation of America: “This
ruling flies in the face of 30 years of Supreme Court precedent and the
best interest of women's health and safety. ... This ruling tells women
that politicians, not doctors, will make their health care decisions
for them.” She had argued that point before the justices.
More than 1 million abortions are performed in the United States each
year, according to recent statistics. Nearly 90 percent of those occur
in the first 12 weeks of pregnancy, and are not affected by Wednesday's
ruling. The Guttmacher Institute says 2,200 dilation and extraction
procedures — the medical term most often used by doctors — were
performed in 2000, the latest figures available.
Six federal courts have said the law that was in focus Wednesday is an
impermissible restriction on a woman's constitutional right to an
“Today's decision is alarming,” Ginsburg wrote in dissent for the
court's liberal bloc. She said the ruling “refuses to take ...
seriously” previous Supreme Court decisions on abortion.
Ginsburg said the latest decision “tolerates, indeed applauds, federal
intervention to ban nationwide a procedure found necessary and proper
in certain cases by the American College of Obstetricians and
Ginsburg said that for the first time since the court established a
woman's right to an abortion in 1973, “the court blesses a prohibition
with no exception safeguarding a woman's health.”
She was joined by Justices Stephen Breyer, David Souter and John Paul
The procedure at issue involves partially removing the fetus intact
from a woman's uterus, then crushing or cutting its skull to complete
Abortion opponents say the law will not reduce the number of abortions
performed because an alternate method — dismembering the fetus in the
uterus — is available and, indeed, much more common.
In 2000, the court with key differences in its membership struck down a
state ban on partial-birth abortions in a challenge also brought by
Carhart. Writing for a 5-4 majority at that time, Justice Breyer said
the law imposed an undue burden on a woman's right to make an abortion
decision in part because it lacked a health exception.
Reshaped U.S. high
court takes abortion case
By James Vicini
February 21, 2006
WASHINGTON (Reuters) - The U.S. Supreme Court said on Tuesday it will
decide whether a ban on some abortion procedures is unconstitutional, a
case that could show if the reshaped court will restrict a woman's
right to an abortion. The justices agreed to review a U.S.
appeals court ruling that declared unconstitutional the Partial-Birth
Abortion Ban Act, signed into law by President George W. Bush in 2003,
because it lacks an exception to protect the health of a pregnant woman.
"The Supreme Court's decision to hear this case is a dangerous act of
hostility aimed squarely at women's health and safety," said Cecile
Richards, president of
Planned Parenthood Federation of America. "Despite 33 years of Supreme
Court precedent that women's health matters, the court has decided it
will once again take up this issue."
In taking the case, the high court will again be tackling one of the
most contentious issues it has faced since its landmark Roe v. Wade
ruling in 1973 that women have a constitutional right to
abortion. The court's action was announced with new Justice
Samuel Alito joining Chief Justice John Roberts on the bench of the
nine-member court. The conservative Alito, Bush's second pick for the
high court confirmed in the past year, replaced Justice Sandra Day
O'Connor, who often cast the decisive vote in support of abortion
rights before she retired.
The law has never been enforced because of court challenges and six
different federal courts around the country have all found it to be
unconstitutional. The Justice Department asked the Supreme Court to
uphold the federal law as constitutional. When it passed the
legislation after nine years of debate, the U.S. Congress decided not
to include an exception for a woman's health, even though a Supreme
Court ruling in 2000 on a similar Nebraska law required such an
The law contains an exception when the abortion is necessary to save
the life of the mother, but not one to preserve the woman's health. Any
physician who knowingly performs the procedure faces up to two years in
prison. The U.S. Justice Department said the phrase "partial
birth abortion" is commonly used to describe a late-term procedure
known as "dilation and extraction" or "intact dilation and evacuation."
Opponents of the law said it also would ban a more frequently used
abortion procedure known as standard dilation and evacuation. That
procedure is the most common one in the second trimester of pregnancy,
DOCTORS CHALLENGE LAW
The case before the Supreme Court involved a challenge to the federal
law by Dr. LeRoy Carhart and three other physicians. Carhart also
brought the successful challenge to the Nebraska law. In asking
the court to hear the appeal, Solicitor General Paul Clement of the
U.S. Justice Department said, "This case involves the constitutionality
of a significant act of Congress that has been invalidated,"
Fifteen states -- Alabama, Arkansas, Colorado, Florida, Idaho, Kansas,
Michigan, Missouri, Ohio, Pennsylvania, South Carolina, South Dakota,
Texas, Utah and Virginia -- supported the appeal.
Attorneys from the New York-based Center for Reproductive Rights
opposed the appeal. They said the government seeks in effect to have
the Supreme Court overrule its 2000 decision requiring a health
exception. Any weakening of this "would represent a significant
retreat from more than three decades of this court's jurisprudence
striking down any abortion regulation that failed to protect pregnant
women's health," they said.
The Supreme Court ruled unanimously last month that a New Hampshire
abortion law should not have been struck down entirely when the problem
involved only the part of the law that lacked an exception for a
pregnant minor's health emergency.
Supreme Court to
decide campaign-spending limits
By James Vicini, September 27, 2005
WASHINGTON (Reuters) - The U.S. Supreme Court said on Tuesday it would
decide the constitutionality of a state law that strictly limits how
much money political candidates can spend, an important
campaign-finance issue that it last addressed nearly 30 years ago.
The justices agreed to review a ruling in 2004 by a U.S. appeals court
that upheld Vermont's campaign finance law on the grounds that it does
not violate constitutional free-speech rights.
The Supreme Court in a landmark 1976 ruling struck down as
unconstitutional federal campaign-spending limits that had been adopted
by the U.S. Congress after the Watergate scandal, but it allowed limits
on political contributions.
The appeals court ruled that Vermont can limit campaign spending to
stem what it said was a corruptive political influence that money can
have and to relieve candidates from devoting so much time to raising
large sums of money.
The decision was the first by a federal appeals court to uphold
candidate-spending limits since the 1976 Supreme Court ruling. Other
appeals courts have struck down similar limits.
The Vermont law limits spending by candidates for governor to $300,000,
for lieutenant governor to $100,000 and other statewide races to
$45,000. It also limits spending on races for the state legislature.
The law, which also imposes strict limits on contributions to
candidates, was adopted in 1997 and had been supported by then-Vermont
Howard Dean, who is now the Democratic Party chairman after an
unsuccessful presidential campaign in 2004.
While the high court has not addressed spending limits since 1976, it
upheld in 2003 a federal campaign-finance law that bans unregulated
"soft-money" contributions to political parties. The law also restricts
some television and radio "issue ads" by corporations and unions before
The Vermont Republican State Committee, the Vermont Right to Life
Committee, the Libertarian Party of Vermont and a group of candidates
and voters had challenged various aspects of the state law in separate
In one appeal to the Supreme Court, attorneys for the opponents of the
law said the case raised issues of "obvious national importance" and
that only the Supreme Court can change the constitutional rules on
political campaign financing.
In another appeal, attorneys for the opponents said the case "goes to
the heart of the democratic process" and involved the right to freedom
Even supporters of the law, including Vermont Attorney General William
Sorrell, and the National Voting Rights Institute, agreed that the
issue warranted Supreme Court review.
Attorneys for the National Voting Rights Institute said unlimited
campaign spending has created relentless pressure on officeholders to
become full-time fund-raisers and has led to incumbents amassing large
amounts of money to deter competitors from entering the race.
In an unrelated case, the justices also agreed to decide whether a
three-judge federal court correctly dismissed a constitutional
challenge by the Wisconsin Right to Life group to the federal ban on
using corporate treasury funds to finance "electioneering
The nonprofit group argued the ban was unconstitutional as applied to
its three broadcast advertisements in 2004 critical of Sen. Russell
Feingold's record on vote-blocking filibusters for judicial nominees.
Feingold, a Wisconsin Democrat, was running for re-election at the time.
The Supreme Court is expected to hear arguments in the Wisconsin and
Vermont cases in January, with rulings due by the end of June.
November 27, 2000
Justices Ready to Walk a Very
Fine Legal Line
By LINDA GREENHOUSE
Nov. 26 — By seizing
a central role for itself in sorting out the legitimacy of Florida's
vote count, the Supreme Court put on the line its own legitimacy as an
institution able to rise above partisan rancor and to serve as a fair
neutral arbiter, the honest broker that many people have found absent
the scene so far.
is a role that carries both risk
and reward. The judgment of history on the Rehnquist court, now in its
15th year, may very well depend on the court's performance in this
on the sobriety of its tone, the persuasiveness of its reasoning and
unanimity of result or, at the least, the civility between the majority
and the dissent.
the Supreme Court is no stranger
either to raging controversy in general or to highly charged political
drama — Richard M. Nixon's appointee as chief justice, Warren E.
signed the 8-to-0 opinion in the Watergate tapes case, which led
to the president's resignation — the current context is extraordinary
the most obvious level, the justices
are now in a position to shape the outcome of a presidential election
which not only the court itself but individual justices featured
as campaign issues.
campaign was marked by speculation,
as rampant as it was uninformed, about which electoral outcome would
which justices to retire, and with what result. Four Republican
named a total of seven of the current justices, while President Clinton
court will be weighing the competing
claims of two presidential candidates, one of whom, Gov. George W.
identified Justices Clarence Thomas (named to the court by his father)
and Antonin Scalia as model justices, while the other, Vice President
Gore, warned that important rights would be endangered by a court
by future appointments into the image of those same two justices.
complete indifference to such
discourse would require a superhuman level of detachment, the risk here
is public skepticism about the ability of the justices to approach the
case from a position of true neutrality. A decision split along the
usual ideological fault lines could be questioned by partisan
of Vice President Gore, perhaps damaging the court's credibility and
little to calm the political tempest. A decision reaching across those
lines, whichever side wins, would show a court reassuringly above the
timing of Friday's argument will
make it all but impossible to lift the case completely above the
fray. The court will be hearing the case five days after George W.
certification as winner and almost certainly during an effort by Vice
Al Gore to contest the results.
more than the reputation of the
current Supreme Court is involved in this case. On a deeper level, at
is nothing less than the legitimacy of the judicial enterprise itself,
and it is here that the greatest risks and rewards for the court lie.
minutes after issuing its
unanimous decision last Tuesday night that the manual recounts in three
Florida counties could continue past a statutory deadline, the Florida
Supreme Court became the target of attacks by Governor Bush's allies
eventually by the candidate himself.
Republicans portrayed the state
court, composed of six Democrats and an independent, as a usurper of
properly belonging to the legislative and executive branches of
government, a court in name only, engaged in a fundamentally lawless
the week went on, it became clear
that the sustained attacks were not simply the expression of the bitter
disappointment of the losing side in a high-stakes lawsuit. Rather,
commentators appear determined to turn the Florida court into a symbol
of everything wrong with a system in which courts have the last word,
well as a rallying point for curbing judicial power.
example, in the Dec. 4 issue
of the conservative journal The Weekly Standard, printed before the
States Supreme Court accepted the Florida case, William Kristol, the
editor, and Jeffrey Bell write:
Bush administration, or a Republican
Congressional opposition, could use this moment of judicial usurpation
in November 2000 to lay the groundwork finally to mount a serious
to the doctrine and practice of judicial supremacy that in the past few
decades has done so much damage to our Constitution."
debate about judicial review
— a more neutral term than "judicial supremacy" — is hardly new, dating
to the earliest days of the country. Nor is the power of judicial
one that the current Supreme Court is shy about using.
court has declared two dozen
federal statutes unconstitutional in the past six years alone, an
high number, with most of these decisions having been written or
by the court's most conservative members. Across the ideological
the Supreme Court has a substantial stake in rejecting any suggestion
the power of judges "to say what the law is," in Chief Justice John
famous phrase, amounts to "usurpation."
Florida case presents a particular
subset of the debate over the judicial role, one with a special
for the current court. The question is how courts should approach the
of statutes, and how to characterize what a court does when it performs
this common task.
than half the Supreme Court's
docket consists of statutory cases, in which the justices' job is not
declaim on the deeper meaning of the Constitution but simply to figure
out what Congress meant when it passed a law that as often as not is
with internal contradictions and linguistic ambiguities.
to accomplish this is the subject
of lively dispute. Justice Scalia is the leader of the school that
for interpreting statutes according to their literal text and plain
disdaining legislative history as a tool, although even he has
expressed the need to take a step back from the actual text and try to
make sense of the statute as a whole. However individual justices
the task, there is no dispute on the court that construing statutes is
an essential part of the judicial function.
the Florida case, the state court
said it would forgo "hypertechnical reliance upon statutory provisions"
in order to give effect to "the will of the people," as expressed in
state's election law as a whole, that as many votes as possible be
this an illegitimate exercise
in making "new law," or a perfectly routine example of a court trying
extract coherence from a confusing and contradictory set of statutory
The Republicans have to insist that it was the former, because the core
of their appeal is that the State Supreme Court ruling changed state
Any Gore electors who might be appointed as a result of the relaxed
deadline, they argue, would be stripped of the legitimacy promised by a
federal election law, Section 5 of Title 3 of the United States Code.
section provides a safe harbor
against challenge on the floor of the House of Representatives for
chosen according to procedures set out in state laws previously
The Republicans are arguing that because of the Florida Supreme Court's
interpretation, the law "enacted" by the Florida Legislature was no
the law in effect when it came time to resolve the electoral dispute.
effect, the court wrote a new law, the Bush legal team maintains.
view of what judges do when
they interpret statutes may prove a hard sell even for Justice Scalia,
who wrote in a concurring opinion in a 1991 case, James Beam Distilling
Company v. Georgia: "I am not so naïve (nor do I think our
were) as to be unaware that judges in a real sense `make' law. But they
make it as judges make it, which is to say as though they were
it — discerning what the law is, rather than decreeing what it is today
changed to, or what it will tomorrow be."
question, said Prof. William
D. Popkin, a specialist in legislation at Indiana University Law
is "whether ordinary statutory interpretation can conceivably be called
an arrogation of legislative power." A Supreme Court opinion accepting
the Republicans' characterization of what happened in Florida "would
all statutory interpretation into question as a violation of separation
of powers," Professor Popkin said in an interview.
The implications of the Bush appeal
for the essential meaning of the judicial function add still another
to this historic Supreme Court case. In judging the Florida election
the justices inevitably will be judging themselves.
Copyright 2000 The New York Times Company