analogies

[David Golove]

Leaving aside how to characterize the Florida Supreme Court's decisions, I think that it does matter. The same considerations should counsel restraint in the state Supreme Courts. However, there are differences as well - first, because the constitutional structure (in my mind unjustifiably) gives the states control over federal elections and second, because the state Supreme Courts are in a somewhat different position than the U.S. Supreme Court, given the latter's peculiar role in U.S. history and political culture. In any case, two wrongs don't make a right; they exacerbate the problem. I believe that it would have been better froma systemic perspective for rage to be directed at the usurpation by the Florida Supreme Court than at the usurpation by the U.S. Supreme Court. This is particularly so, because there was a political remedy - one which quite likely would have been exercised - to deal with the Florida Supreme Court. This is not to say that I think the political branches ought to exercise their power to interfere lightly. That too raises large legitimacy concerns. But that is another question.

>>> mcconnellm at LAW.UTAH.EDU 12/15/00 04:43PM >>>
I don't mean to be argumentative, but does it matter, under David's theory,
that the lower courts were anything but "wary" of assuming jurisdiction, and
that they based they decision on an interpretation that strongly appeared to
move not just doctrine but statutory law in a new and unanticipated
direction? (I know some may not agree with that characterization, but for
purposes of evaluating the claim that the Supreme Court should have stayed
out, we have to consider it from that perspective.)

Michael McConnell
University of Utah College of Law
332 South 1400 East Rm. 101
Salt Lake City, UT 84112


> -----Original Message-----
> From: David Golove [mailto:GOLOVED at JURIS.LAW.NYU.EDU]
> Sent: Friday, December 15, 2000 2:04 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: analogies
>
>
> I do think that Frankfurter's cautions are instructive,
> though I certainly don't agree with all of his conclusions.
> My own view is narrower than his. I'm not arguing for a broad
> non-justiciability principle under which the Court would have
> to steer clear of any question that pertains to the
> franchise. That is way overbroad, and how to handle electoral
> cases is surely a matter of delicate judgment to be exercised
> on a case by case basis. Whatever the contours of a theory
> that could guide discretion might be - and whether any one
> theory would be sufficient given the large number of
> different questions at stake - it seems clear to me 1) that
> the Court ought to be wary of assuming jurisdiction over an
> ongoing presidential contest, especially when its decision
> will unequivocally determine the winner, and 2) that when it
> does decide to hear such a case, it ought to be even more
> wary of basing its decision on interpretations of the law
> that tend to move existing doctrine in new and u!
> nanticipated directions and in a manner that appears to be in
> tension with other parts of its existing jurisprudence. It
> may be, as some "liberals" claim, that the Court's equal
> protection arguments may be generative of positive new
> developments in constitutional doctrine. However, that
> doesn't help. It would have been better here for the Court to
> adhere closely to existing doctrine and leave for another day
> any announcement of its adherence to new doctrine.
>
> >>> mcconnellm at LAW.UTAH.EDU 12/15/00 09:35AM >>>
> David Golove's position is precisely that of Justice
> Frankfurter in Baker v.
> Carr: there is something so uniquely political about election
> issues --
> including the inevitable partisan implications -- that the
> courts must stay
> out. That, of course, is a compliment to David. But it was a
> step taken long
> ago, and I have not heard many expressions of regret about it
> by other than
> conservative die-hards.
>
> Michael McConnell
> University of Utah College of Law
> 332 South 1400 East Rm. 101
> Salt Lake City, UT 84112
>
>
> > -----Original Message-----
> > From: David Golove [mailto:GOLOVED at JURIS.LAW.NYU.EDU]
> > Sent: Thursday, December 14, 2000 3:32 PM
> > To: CONLAWPROF at listserv.ucla.edu
> > Subject: Re: analogies
> >
> >
> > I didn't suggest that the Court's decision is the most unjust
> > decision the Court has rendered. That would be absurd. The
> > Court's decisions have sometimes imposed gross injustices (as
> > some think is the case with Roe/Casey, although I disagree).
> > When the Court acts in that fashion, there is every reason to
> > criticize it harshly, perhaps to do more, as in Dred Scott.
> > The issue isn't the depth of the injustice or even the
> > importance of the issue. The problem in Bush is with the
> > Court's intervention directly into the electoral process,
> > which is at the core of the democratic system. Democratic
> > processes depend on public confidence and trust. Public
> > confidence underwrites legitimacy and is the foundation of a
> > democratic system, without which we can't withstand the kind
> > of blows that Roe/Casey or Bowers represent, nor sustain the
> > political system that allows us peacefully to resolve such
> > fundamental conflicts of values. This applies equally to
> > public acceptance of, say, tax cuts for th!
> > e rich/tax equity, privatizing/bankrupting social security,
> > etc. The deepest problem with Bush is that it undermines the
> > confidence of part of the polity in the democratic system. To
> > part of the polity, It looks like having a majority of
> > members of the Court from your political party is what it
> > takes, at least sometimes, to get elected. In this respect,
> > Bush is a continuation of the constitutional crisis which the
> > impeachment affair provoked. To a great many members of the
> > polity, that appeared to be an attempt at legislative
> > usurpation of the democratic process, whereas Bush is a case
> > of judicial usurpation. Of course, how serious a blow these
> > are depends in part upon how plausible impeachment/Bush were
> > under existing constitutional understandings. At least as to
> > Bush, all the efforts of its supporters, sophisticated as
> > they may be, appear to be apology for what was quite
> > evidently a raw power grab. Without wanting to exaggerate the
> > problem, I don't believe that democratic pr!
> > ocesses are secure in any country, no matter how long they have be
> > are headed down a dangerous path at this juncture.
> >
> > >>> akoppelman at NWU.EDU 12/14/00 04:42PM >>>
> > David Golove's disanalogy is a thoughtful one, but I think
> > that the Roe
> > analogy is still pretty strong.  Abusing the judicial power
> > in order to rig
> > an election is pretty bad, but it pales by comparison with
> > licensing the
> > murder of millions, which is what, if you're a pro-lifer, Roe
> > did.  I think
> > Roe was rightly decided, but I've never thought that its
> reasoning was
> > persuasive.  It wasn't until the day before yesterday that I really
> > appreciated the sense of shock and betrayal that pro-lifers
> > must have felt
> > in 1973:  in both cases -- at least from the perspective of
> > the viewer in
> > question -- the judiciary arrogates to itself the power to
> > decide a matter
> > of urgent concern that it is not its business, decides it
> wrongly, and
> > offers a ridiculously vapid justification for what it has done.
> >
> >
> > _________________________________________________
> >
> > 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
> > _________________________________________________
> >
>