Justice Scalia statement about Bush v. Gore

[Douglas Laycock]

Scalia's idea that clearly Bush v. Gore  clearly had to be decided in the U.S. Supreme Court and not in the Florida Supreme Court flies in the case of the express Congressional determination that disputes over electors should be decided in state supreme courts.  This was explicitly in the statute in the safe harbor provision, which was tied to a date; Florida had missed the date and thus was outside the express provision that arguably precluded review elsewhere.  But it is a long ways from their missing a deadline to his apparent view that they had no legitimate right to decide and the case could only be in the Supreme Court of the US.  
 
The Congressional scheme clearly set up the state courts as the primary decision makers, even if Florida had muffed it's opportunity; that Congressional judgment is squarely contrary to Scalia's claim about where the responsibility for such cases necessarily lies.
 
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of RJLipkin at aol.com
Sent: Sun 3/26/2006 9:17 PM
To: Sanford Levinson; mark.kende at drake.edu; CONLAWPROF at lists.ucla.edu
Subject: Re: Justice Scalia statement about Gitmo


     What I find overwhelmingly infuriating about Justice Scalia's remarks is his apparent lack of anything resembling an ability for self-criticism. "Get over it," "it's crazy," "not a very hard question," "there was no way we could have turned that case down" and "nobody has ever thought otherwise" just for starters. His apparent incapacity to try to see anything of value in the other guy's point of view is maddening. No, it is apparently inconceivable to him that the Supreme Court was politically motivated in Bush v. Gore. And his exhibition of an entrenched, in my terms, "unimodal" perspective that makes his solipsism not only possible but a reality. 
 
        To give life tenure to people with intellects such as this threatens, in my view, anything resembling deliberative discourse, and in any event is, again in my view, madness.
 
Bobby
 
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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