Role Reversals in Filings With High Court

Is the Rehnquist Court in danger of repudiating its own states’ rights philosophy if it sides with Texas Gov. George W. Bush and overrules the Florida Supreme Court’s determination of state election law?

Or instead, would it be upholding the conservatives’ favorite legal principle: that legislators, not judges, should make the rules?

Those questions have been raised often since Friday, when the U.S. Supreme Court took up the Florida election case. The crosscurrents have kept legal experts guessing as to what’s behind the court’s intervention.

It escaped no one’s attention that the lawyers representing each campaign showed that they could change their rhetoric faster than the politicians changed wardrobes.

The Republicans, who usually oppose federal judges’ meddling in state affairs, told the Supreme Court that it must bring “finality” to the messy dispute in Florida.

And liberal Harvard law professor Laurence H. Tribe, representing Vice President Al Gore, became a champion of “federalism,” the notion that states should be free to make their own decisions. He defended “each state’s right to organize its election” without interference from Washington.

But the simple split between states’ rights and national power may miss what is at issue, at least in the eyes of Chief Justice William H. Rehnquist and his colleagues.

Over his long career, Rehnquist has insisted that hard decisions should be made by elected state lawmakers, not judges. Looked at through this prism, a Supreme Court ruling for Bush could be seen as a victory for the Florida Legislature over the state’s high court. This would be in keeping with the principles espoused by the chief justice and his fellow conservatives.

At the same time, such a ruling would be true to the partisan preferences of the Republican-dominated high court. For many, the line between law and politics in the Florida election dispute looks increasingly blurry.

GOP Charged Bias on Florida Court

Last week, Republicans wasted no time in criticizing as politically biased the Democratic-dominated Florida Supreme Court when it ruled for Gore and extended the deadline for the completion of hand recounts. By late Sunday, however, that decision looked to be less of a victory for the Democrats; Palm Beach County had failed to meet the deadline, and Miami-Dade County officials, believing they would not have time to finish their hand recount, suspended it.

This week, many Democrats and liberal lawyers are wondering whether the U.S. Supreme Court, with its seven Republican appointees, will return the favor by ruling for Bush and the Republican-controlled state Legislature.

Los Angeles lawyer Edward Lazarus, a former Supreme Court clerk, said it would be “an act of rank hypocrisy” for the high court to reverse the Florida court’s decision. “It would turn the basic thrust of their states’ rights jurisprudence on its head,” said Lazarus, whose book, “Closed Chambers,” sharply criticizes Rehnquist and his colleagues.

American University law professor Herman Schwartz agreed that a party line vote in favor of Bush would tarnish the court.

“If it’s a 5-4 ruling, with the usual conservative lineup, it will be seen as a partisan decision. They will have abandoned their philosophy of states’ rights for partisan purposes,” Schwartz said.

In recent years, the court has handed down a series of 5-4 rulings that shielded the states from federal laws. For example, the court ruled in January that state agencies and public colleges cannot be sued by employees who are victims of age discrimination, despite the federal law that makes such bias illegal. Rehnquist was joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas in this case of state versus federal power.

But the court has not been consistent in this area, especially when states are defending liberal laws.

Hard to Find a Pattern in Decisions

In the last term, Massachusetts came before the high court to defend its so-called Burma law. State lawmakers said they did not want state agencies to buy products from companies that did business with the repressive military regime in Myanmar, formerly known as Burma. Several California cities, including Los Angeles, had similar ordinances.

But in a unanimous ruling, the high court voided these laws on the grounds that the federal power over foreign affairs prevailed.

A similar issue arose in a case involving automobile air bags. Several state supreme courts had ruled that the victims of car crashes could sue auto makers that didn’t install air bags. The states have broad liability laws on personal injury cases.

But the Supreme Court disagreed and threw out the state lawsuits. The National Highway Traffic Safety Act controls auto safety standards, and states cannot adopt other standards, the justices said.

These conflicting decisions make it hard to discern a consistent pattern. But if Congress has set a clear set of rules, the high court will generally uphold them, even if they conflict with state laws.

In the case to be heard by the high court Friday, Bush’s lawyers are relying on an old, obscure federal law, but one designed specifically to regulate the process of choosing presidential electors. It says that “any controversy or contest” concerning electors must be decided on the basis of “laws enacted prior to the day” of the election.

They also point to the Constitution, which says a state may appoint its electors “in such Manner as the Legislature may direct.”

Taken together, these provisions give the Supreme Court clear authority to intervene in the state dispute in Florida, at least according to conservative legal scholars.

“The U.S. Supreme Court can say quite legitimately that this was a question for the state Legislature. They created a deadline that allowed the secretary of state to exclude manual recounts,” said Pepperdine University law professor Douglas Kmiec, who is advising Bush’s legal team.

The University of Utah’s Michael McConnell said he agrees. “We have a very specific statute designed to deal with a disputed presidential election,” he said. By this reasoning, the high court would be just enforcing federal law, not making up a new constitutional rule to settle the matter.

But liberal law professors say they do not understand why the Florida Supreme Court’s decision interpreting the state’s election law should be second-guessed by federal judges.

“The U.S. Supreme Court resolves conflicts in the law all the time, and they don’t say they are making a new law or changing the rules,” USC law professor Erwin Chemerinsky said. Yet Bush’s lawyers are asking the justices to rule that the state court’s ruling changed the rules and made a new law, he noted.

“It strikes me as really a stretch to say the interpretation of an ambiguous [state] statute is asserting the power to name electors,” Georgetown University law professor Emma Coleman Jordan said.

“I think this is an occasion where [the U.S. Supreme Court] has an opportunity to endorse a state court’s interpretation of an ambiguous statute and thus affirm a role for the judiciary in resolving such disputes,” Jordan added.

“It’s Marbury vs. Madison for the modern age,” she offered, referring to the landmark 1803 Supreme Court decision that established the principle of judicial review.

Even some conservatives are wondering whether the court has wandered into a morass.

On Friday, the justices hurriedly granted Bush’s appeal that asked the court to uphold the power of Florida Secretary of State Katherine Harris to certify the winner of the presidential contest.

On Sunday, Harris did just that, declaring Bush the victor.

Over the weekend, while the attorneys for Bush and Gore raced to write their briefs for the high court, the issue they were fighting over seemed to have disappeared.

“I don’t think there is a live controversy left for the Supreme Court,” McConnell said. “My guess is, they will dismiss it as moot as soon as the process has played out.”

This afternoon, the lawyers representing Bush and Gore are scheduled to file their briefs with the court in the case of George W. Bush vs. Palm Beach County Canvassing Commission, 00-836.

First, they must argue for their view of the most important election law case in the nation’s history. And as an aside, they must also explain why the case still has any remaining legal significance.