The Court's accelerated schedule

[Tobias Barrington Wolff]

I wonder whether others are as troubled as I am at the accelerated schedule
on which the High Court will (of necessity) be hearing this appeal.  If the
Court reaches the merits of the Article II question, it will be called upon
to decide the following question: When can it be said that a court's
interpretation of a statute, and its implementation of that interpretation,
is not merely erroneous, but has crossed some line and become a "new"
enactment of positive law, in derogation of the legislature's
prerogatives?  This is a fantastically complicated question -- one that the
Court (per Justice Scalia) has deliberately ducked before (see Sun Oil v.
Wortman).  It is, moreover, a question that could have significant
implications beyond the present context.  Professor Scarberry and others
have argued that the federal separation of powers should inform our
understanding of the "State Legislature" language in Article II.  If this
is correct, then I can think of no good reason why the reverse would not be
the case.  It is entirely possible that Bush v. Palm Beach County will bear
significantly upon the interpretive methods that federal courts employ
hereafter in construing and implementing federal statutes.  Although the
current Court contains some very smart individuals, I do not like the idea
of any Court rendering an overnight decision on an issue with such
far-reaching implications.

-- TBW