Bush v. Gore

[Stephen Siegel]

Sandy is totally correct that to cabin the "flamboyant" declaration of the
Per Curiam opinion, and give it the more credible meaning I suggest,
requires an "interpretive gloss."  And therein lies the trouble with those
sentences.  Judicial comments that rely on implicit qualifications for
their credible meaning are subject to being quoted out of context and
standing for more than they originally credibly meant.  In fact, that is
what the various Bush briefs, the Palm Beach County v. Harris opinion, and
the Per Curiam opinion were doing with their selective quotes from
McPherson v. Blacker!

Thus as Sandy indicates, the Per Curiam opinion's expressly unqualified
remark and quote from McPherson that "the legislature [may] resume the
power at any time" can only function mischievously in any future
discussion of the state legislature's role in Presidential elections
whether those arguments are in the courts, the legislative halls or in the
public fora.  Quite probably, someone arguing the Fried-Elhauge position
would inappropriately be encouraged by the Court's unguarded language, and
even tempted to use it.

So as Randy Barnett has suggested, I am charitable in my interpretation of
the Per Curiam opinion; I have constructed an "interpretive gloss" to
reign in a remark that without it is so clearly and obviously wrong that
it cannot be meant.  But having done so, I (agreeing with Sandy) cannot be
charitable in my estimation of the damage it may do.

In addition, notice what Mark Graber charmingly calls "the
passive-aggressive virtues" at work in this patch of text in Gore
v. Bush.  As quoted Sandy in Sandy's original message, it is the McPherson
v. Blacker Court which is responsible for the looney remark that the
legislature can "resume the [Elector appointment] power] at any
time."  The Bush v. Gore Court is (given my interpretive gloss) merely
quoting it for the blander and surely correct notion that the legislature
may resume it at some time.  Isn't this "passive-aggressive" and, in that
sense, just like the when the Court claims that the looney notion that
Florida must conclude its ballot contest by Dec. 12 comes from the Florida
Supreme Court?  As Susan Bandes has pointed out to me, this supposed claim
of the Florida Supreme Court, a claim which Florida Supremes never made,
is the only bit of its statutory interpretation which the Bush v. Gore
majority treats with respect rather than contempt.