lessons of Bush v. Gore

[Richard Dougherty]

Scarberry, Mark wrote:

> ...I went on to say that I thought that, as a matter of doctrine, apart from
> any concern about political capital, the Court would have no problem upholding
> the NJ S. Ct.'s decision. The Court's 1932 opinion in Smiley v. Holm at least
> permits, and perhaps requires, that decision. No one has yet commented on the
> applicability of Smiley, and I would be interested in others' views on this
> point...

Mark:Smiley does make a forceful argument for reading "legislature" as the
legislature in its normal, law-making capacity (subject to veto, etc.), which
seems to be the plain meaning of the term here.  Someone asked earlier why the
framers would choose the term legislature here in I.4, and this suggests the
answer: the legislature ordinarily makes law, and is responsible to the people,
thus it matters in all the areas the Smiley Court indicates are within the
purview of the legislature (I.3, I.4, I.8.17, Art. V).

Do you think the SC is likely to conclude that the NJ Court did not undermine
the power of the legislature, or just that it is not a federal issue?  (Sorry if
you addressed this before and I missed it.)

Richard Dougherty