. . . Among courts, the United States Supreme Court goes last. With no higher court, it cannot be reversed. It has the pseudo-infallibility of finality. . . . 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. . . . 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.
. . . 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.
. . . 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. . . . . 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.
Let's start with the last, and to me, the most important part of the pile of manure:
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. . . . 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.
Now is the election of the President the one issue Justices care about? Do they NOT care about, say, the issue of abortion rights? Is Althouse NOT admitting that a potential Justice like say, Sam Alito, who is quite open about his belief that not only is abortion a moral wrong, but that Roe was wrongly decided, is going to be strongly influenced by that belief?
In short, does not Althouse admit that she too, is a legal realist? And given that admission, is it not fair to expect that Althouse would approve of a query in detail regarding Alito's views on legal issues? Is it not fair to expect that Althouse would not condemn critiques of the results of Alito's opinions without trying to engage in hypertechnical "gotcha-isms"?
But Althouse is a "pundit realist" as well. She'll shift gears as it suits her to achieve the pundit "result" she desires. Does that make her different than anyone else, including me? No, but she plays the same type of pseudo-"judicial resraint" game that Conservatives play when discussing judicial philosophy. She'll claim faithfulness to some "neutral" principle when in fact she is just twisting to achieve her desired result, just like the rest of us.
But it is worse than that. Because even a legal realist like myself understands that the judicial rules place limits on how much wiggle room judges have to achieve their desired results. Concepts like precedent, consistency, rules of construction, political question doctrine, etc., place limits on the ability of judges to render any result they deem the correct one. And in a case like Bush v. Gore, adhering to those rules is more important by a factor of 10 than in any other case. It is precisely because of what was being decided that the SCOTUS' actions in Bush v. Gore were egregious in a manner almost unequalled in the history of the Court. They should never have taken the case period.
But it is even worse than that. Because Bush v. Gore is so obviously nonsense as a judicial ruling. No one believes it as even close to being sound law. Equal protection? That does not even rise to the level of laughable. And Althouse knows this. She will not even bother to defend it on legal grounds.
Her grounds of defense are the SCOTUS had the power. And, implicitly, that the Florida Supreme Court did the same thing. In effect, she adopted Scalia's argument - who gets to decide - the Florida Supreme Court or the United State Supreme Court? For Scalia and Althouse, it is obvious, the SCOTUS does.
Well, certainly it had the POWER to do so. But to appeal solely to POWER is to eviscerate the concept of law itself.
Let's assume for the sake of argument that the Florida Supreme Court DID act in a naked results oriented manner. Or to put it as Althouse did:
the Florida Supreme Court had cloaked itself in the language of statutory interpretation
But this is a perfectly acceptable action by the Florida Supreme Court. They are the ultimate arbiter of FLORIDA law, which was what was at issue here. To say that the Presidency was being decided is only a question of circumstance. The LEGAL issue was STRICTLY a Florida election law question. In no way was federal law implicated in a real sense. The safe harbor argument had fallen by the wayside. The silly Article II argument was always completely absurd. Since the Florida Supreme Court was determining what Florida law was, AS COURTS DO ALL THE TIME, there was no way that could be ruled a change in the law.
So, assume the worst, the Florida Supreme Court acted completely with an eye to favor Gore. It still was exclusively a question of Florida law.
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.
Limits? It WAS undisputedly state law!! Did someone argue that Florida election law is not Florida law? Of course not. What extreme is Althouse talking about?
Finally, what was the essential difference between the actions of the Florida Supreme Court as compared to the SCOTUS'? Very simple. The Florida Supreme Court HAD TO DECIDE the case. It had no choice. It could have ruled in favor of Bush or in favor of Gore. But it HAD to rule.
The Supreme Court of the United States had no such compulsion. Cert denied is all they had to say. They chose to do otherwise.