Propriety of Stay? [was: Another Constitutional Moment?]

[David Cruz]

On Mon, 22 Jan 2001, Greg Sisk wrote:

> [snip]
> Regardless of motive, the recount process created by the Florida
> Supreme Court's 4-3 decision was so lacking in mathematical
> integrity, balance, objectivity, and assurances of fairness that I
> have yet to see any remotely persuasive defense of it.  It is for
> that reason that I suggest the stay was the equivalent of a summary
> reversal on the merits.

Although Greg has now said so twice, I disagree that the stay order was
the equivalent of a summary reversal, if for no other reason than that the
public would be aware from a summary reversal that the Supreme Court was
deciding the issue on December 9 without further briefing or oral
argument.  In a summary reversal on December 9 the Court could not have
said with a straight face, "we're not deciding this; it's just too late to
comply with what the Florida Supreme Court has already said the state
election law requires."  The Court thus could not dodge responsibility in
the way that it appears to many of us to be trying in its December 11
opinion.  (Of course, maybe the 5 Justices could have found a way to do so
even with a summary reversal.)  Instead, if the equal protection theory
were the same, the Florida Supreme Court could perhaps have ordered a
recount with a new rule applicable statewide that might have been
concluded on time, thus leaving the nation with a much less troublesome
outcome of the election/litigation, whoever won.

For these and other reasons, I respectfully disagree with Greg that the
December 9 stay is a red herring.  It is very relevant to an assessment of
the Supreme Court's conduct in this matter.

-David B. Cruz, USC Law (Cal.)