jim baker; & Florida Legislative Supremacy

[Barry Friedman]

i agree w/michael.  it would be rare to have the us sup ct reverse the state sup ct on state law, but if that court is *so* out of line as some claim, it is not unprecedented.

and of course, it is a "republican" us supreme court

which leaves me wondering, especially as i teach a course on the politics of judicial review (with two political scientists, john ferejohn and anna harvey):

do those of you decrying the florida supreme court believe that this is just partisanship and not plausibly law?  in other words, would you sign a statement in a news paper condemning that court for abdicating its role of deciding according to law?

i ask this neither rhetorically nor naively.  i've now spent a semester debating legal v. attitudinal models, and this is something i think about a lot.  and, if there is anything about this entire matter that has disgusted me and kept me silent till now it is that no one seems to be able to make any observation not driven by naked partisanship.  for me, i'm a gore voter, but i think there arelimits to what gore should pursue,and if bush wins fine. but i'm surprised at the willingness of some to (a) assume courts are no different than other partisans and (b) say so anyway.


Barry Friedman
 Professor of Law
NYU School of Law
40 Washington Square South
Room 317
New York, NY  10012

(212) 998-6293


>>> masinter at NOVA.EDU 11/22/00 11:18AM >>>
I hope that the Florida Legislature has the good sense to stay out of the
controversy.  If the Florida Supreme Court has violated Article II, the
Bush lawyers should file a cert. petition and seek emergency relief.  To
turn to the Florida legislature rather than the U.S. Supreme Court to
correct a federal constitutional error by the Florida Supreme Court
invites chaos.  Reasonable people can disagree whether the Florida
Supreme Court violated Article Two (I do not think it did), but we can
agree that, at least since Marbury, the Supreme Court has exercised the
power it exercised in City of Boerne to decide the meaning of the U.S.
Constitution.  Unless the Supreme Court were to hold that the question is
nonjusticiable because it is textually committed to state legislatures,
the Florida Legislature should continue to enjoy its vacation.

For what it's worth, the Florida Legislature cannot meet unless 1)
Governor Jeb Bush calls it into special session, or 2) two thirds of
the members of each chamber vote to meet.  There are insufficient votes
among the members to call the legislature into special session; that
leaves the ball in the court of Jeb Bush, who has recused himself from
participating.

Suppose VP Gore wins as a consequence of a recount, and the margin is
sufficient to overcome the additional votes Gov. GW Bush obtains from a
recount of improperly excluded overseas absentee ballots.  What legitimacy
would attach to a slate of electors chosen by the Florida Legislature in a
special session convened at the request of Governor Jeb Bush to reinstate
the decision of his brother's campaign cochair disenfranchising Florida
voters whose lawful votes were not counted within seven days of the
election?  That scenario would make Milosevic blush.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Tue, 21 Nov 2000, Scarberry, Mark wrote:

>  List members who have followed the Florida Legislative Supremacy thread
> will know that there is an argument (and I think a very strong one) that the
> Florida Supreme Court usurped the Florida Legislature's role, as the US
> Constitution defines that role. Art II section 1 gives the Florida
> legislature--not its executive and most certainly not its courts--the power
> to determine the manner of "chusing" presidential electors. The Florida
> Supreme Court took a statute which provided in one section that the Sec. of
> State "must" disregard late certifications, and in another section provides
> that she "may" disregard them, and turned the resulting ambiguity into a
> judge-made rule that she almost never may disregard them. Further, the
> Florida S. Ct. went out of its way to say the the legislature's making of
> election laws was subject to the Fla. constitution--which of course means
> subject to the Fla. Supreme Court as expositor of that constitution. That is
> a direct slap at the legislature and diminishes the power the legislature
> has under the US Constitution (which of course trumps the Fla. const.) to
> determine the manner of selection of electors. Whether the US Supreme Court
> will consider this to be justiciable--or on the other hand a nonreviewable
> political question--for the Fla. legislature to act on subject to final
> review by the US Congress in its vote-counting role--is, I suppose, in
> doubt. But I don't think there can be much doubt that the Fla. S. Ct. has
> thrown down the gauntlet, challenging the Fla. Legislature (and, as I will
> state in an op ed piece that I am writing, also challenging the US
> Constitution.) I don't see any way that the Florida legislature can allow
> the Fla. S. Ct. to declare itself to be the final arbiter of the
> legislature's power under US Const. Art II section 1.
>
> It's like RFRA ten times stronger--the US S. Ct. in City of Boerne decided
> it could not let Congress usurp its authority to determine the meaning of
> the 1st and 14th Amendments, and here the Fla. legislature cannot allow the
> Fla. S. Ct. to usurp its authority.
>
>
> Mark S. Scarberry
> Pepperdine Univ. School of Law
>
> -----Original Message-----
> From: Barry Friedman
> To: CONLAWPROF at listserv.ucla.edu
> Sent: 11/21/00 8:58 PM
> Subject: jim baker
>
> i'm listening to jim baker trash the florida supreme court.  that
> strikes me as remarkable.  if he thinks the courts so much in error,
> there are appeals to be taken, arguments to be made to other courts.
> they may not get anywhere.  it could be the florida supreme court is
> supreme for now.  but we generally try to avoid such blatant trashing of
> courts.
>
> agree?  disagree?
>
>
> Barry Friedman
>  Professor of Law
> NYU School of Law
> 40 Washington Square South
> Room 317
> New York, NY  10012
>
> (212) 998-6293
>
>