A professional puzzle

[Ann Althouse]

Aptly put. This identifies the key flaw in the per curiam opinion. The
Court admitted its own lack of power to interpret state statutory law, but
it didn't trust the state court to do any more interpretation, so it took
one proposition from the state court's opinion and dictated how that factor
would play out in any statutory interpretation. In doing that it really did
take over state statutory interpretation, though not as extravagantly as
the concurring opinion did. At least the concurring opinion identified a
federal law basis--Article II--for taking over the state statutory
interpretation. The per curiam just did it.

Ann Althouse


>Unfortunately, I am going to have to teach Bush v. Gore in my
>Constitutional Law class this spring, and I am not at all confident of my
>ability to discharge my professional responsibilities by presenting an
>argument defending the result.
>
>I don't agree with the Court's equal protection theory, but I understand
>it, regard it as within the bounds of reasonable legal argument, and could
>easily take that side in class if it proves necessary to do so. The great
>difficulty comes at the remedy phase.  The Florida court's earlier opinion
>nowhere suggests that the goal of complying with the Dec. 12 date overrides
>the goal, which the Florida court seems to regard as at least equally
>urgent, of counting all votes.  (The Florida court's discussion of the
>importance of that goal in the statutory scheme is entirely ignored by the
>Supreme Court's per curiam opinion.)   The Florida opinion offers no
>guidance whatsoever as to the question of how the two goals are to be
>balanced in the event of a conflict, and neither do the Florida statutes.
>So far as I can tell, the per curiam opinion just made up its answer to
>that question out of whole cloth, and then relied entirely upon that
>conclusion in constraining the discretion of the Florida Supreme Court. The
>per curiam opinion's order does not even seem to leave room for the
>possibility that the Florida Supreme Court might disagree with the U.S.
>Supreme Court's novel interpretation of Florida law.  (There are remedies
>that are consistent both with the Florida court's earlier decision and the
>U.S. Supreme Court's equal protection theory, most obviously a statewide
>hand recount with clear standards for dealing with hanging chads, dimples,
>etc.  Such a recount could easily be completed by January, which is the
>real deadline.)
>
>I am trying to imagine some theory according to which the court's order is
>is not an entirely lawless conclusion, well outside the bounds of plausible
>legal argument.  So far I have failed.  This is a matter of real personal
>urgency, since I will be teaching this case and now feel myself incapable
>of doing so evenhandedly.  There must be some reasonable defense of what
>the Court has done, but I cannot see it, and I need to.  Help!
>_________________________________________________
>
>Andrew Koppelman
>Associate Professor of Law and Political Science
>Northwestern University School of Law
>357 East Chicago Avenue
>Chicago, IL  60611-3069
>(312) 503-8431
>mailto:  akoppelman at northwestern.edu
>_________________________________________________