Vox Populi
A Letter to the Editor

... And a Pox on the Courthouse too! (round 2)
Friday, December 15, 2000

(Round 2 of this Vox Populi -- read round 1)

Below is brief response which I believe closes the argument on my end.

I do have to agree with your assessment that, at the very least, the U.S. Supreme Court did do us a favor in ending this issue for the American people: however, this brings up the old philosophical issue of whether or not the end justifies the means. As you have noted, the final call was ultimately going to rest on somebody's shoulders and I would have to say whomever's shoulders those happened to be would have to face criticism equal to that of Atlas' burden!

In your response, you noted that this decision could have landed in one of four places: the Federal Supreme Court, the Federal Legislature, the Florida Supreme Court, or the Florida Legislature. I would like to briefly address my feeling about these options:

The first thought comes from my point of view as somebody who does not live in Florida. Perhaps this is a selfish reason, but I would probably feel more comfortable blaming this problem on the State of Florida than I would blaming it on a branch of the Federal Government. While I realize our Nation isn't perfect, I still take a lot of pride in it. It would seem better to me if these events had harmed Florida's reputation rather than that of the Nation as a whole. (Of course, on an international level there isn't any perceived difference- but, to a U.S. citizen, I think there is.) As a result, letting this remain a State's Rights issue would have been preferable.

Moving to the Federal level, you do make a good point that, between Congress and the Court, Congress doesn't have the best public standing right now- but, generally speaking, the Supreme Court has a good reputation. I would actually think that would be a better reason to allow Congress to have handled the problem. Suppose you have two silver plates, one that is clean and one that is visibly damaged? Let us also suppose that you need to do something that is going to tarnish one of them. Do you tarnish the good one or the one already damaged?

But the decision did come down to the Supreme Court and that is something we all have to live with. I am only old enough to remember detailed information about elections going back to 1988- so, for me, this is the first time in which I have seen the Supreme Court actually become an election issue itself. It is unfortunate that the first time the Court should have had an opportunity to determine our next President, this also happened in an election where they became one of the issues. Perhaps had this not been the case, the decision of the Court would be less scrutinized. However, with the Supreme Court having so much of their own as an institution at stake, I would think they would have tried to handle it better.

You did mention that under 3 U.S.C. 2 it isn't clear whether or not the Florida Legislature had acted legally because it isn't clear if the people had "failed to make a choice". I would agree that you have a valid point, but I also think that this may have been the key to the Federal Supreme Court's salvation. It is the job of the Supreme Court to interpret Federal laws when it isn't clear what they mean or when they apply. The Court could have simply "interpreted" the meaning of this law in applying it to the Florida election: this would have accomplished three things for the Court:

First, it doesn't entirely take away from State's Rights. The Court would be interpreting a FEDERAL law and not a State law and the power of choosing Electors would remain in the hands of the State of Florida. The only real breach of rights would be that the U.S. Supreme Court would declare the people of Florida "failed to make a choice" instead of that State making that decision.

Second, it doesn't take away from Congress' right to validate ballots as you brought up in your argument. The Court would simply be interpreting the law Congress wrote to decide where the "valid" Electors are coming from, which is the Court's right under the concept of Judicial Review.

Third, if- indeed- the Court's final decision was politically motivated, it still would make Bush the victor without forcing the Court to pick sides. The Court had to have known that the Florida Legislature was Republican-controlled and that it would throw their votes to the presidential candidate of that Party. The Court could have simply "passed the buck" of responsibility on to another political body.

Now, I will admit a certain amount of mincing of words by the Court would have been necessary to have pulled this off. They would, for example, still take some criticism for possibly twisting the intention of 3 U.S.C. 2. I will also admit that my solution may not be the BEST solution: I'm sure people can (and maybe will) argue for the next four years over other scenarios. However, it does illustrate my point that the Court had better options available to them.

David Jones

Richard E. Berg-Andersson responds:

I, too, will close this discussion on my end (unless someone else wishes to post a "Vox Populi" re: what we have both stated here):

I can only say that the inherent problem of what you have written in your own response as possible solutions to the problem by the U.S. Supreme Court is that none of these were put forth by the parties at issue in the case of Bush v. Gore. We Americans generally tolerate what we call Judicial Review, to a greater or lesser degree, because none of our courts- whether on the State or Federal level, whether their judges serve for life or for a limited, yet relatively long (compared to legislators and executives), term of office- have the power or authority to reach out on their own and answer legal controversies not actually presented to them in the courtroom. Unlike our legislators and executives, courts cannot arbitrarily pick and choose just which issues they will deal with out of the blue unless someone has brought a legal case before them involving such issues (and in the case of an appellate court- such as the Florida and United States Supreme Courts- such a legal case has, of course, already been heard as a lawsuit or criminal proceeding at the trial court level: thus, the issues come to the courts above with an already established legal "record"); while it is true that- by granting (or withholding) Certiorari- the highest appellate courts in a given jurisdiction (the so-called "courts of last resort") DO "pick and choose" among issues to at least some degree, their choices are limited by what has come before it on appeal from a lower court and, thus, is not the unfettered "policy" choice that legislators and executives have in our political/governmental system.

The "abuse of power" we have both described in this exchange and attributed (in different ways) to the Federal Supreme Court as a result of its 12 December decision is- in the main- simply a low-level form of so-called "judicial activism", a highly controversial thing for courts to engage in that is largely- and, in my opinion, properly- decried (we saw a textbook example of just such judicial activism in the case decided this past Fall- later overturned on appeal- in Puerto Rico in which a Federal District Court judge on that island Commonwealth ruled, in more or less complete disregard of the system set up by the Constitution and Title 3, Chapter 1 of the U.S. Code, that Puerto Rico had the inherent right[!] to vote for Presidential Electors this year!!). I think we can both agree that the U.S. Supreme Court did not itself rise to that level of judicial activism with what they did on 12 December.

However, it WOULD be rather near- if not at, or even surpassing- the judicial activism seen in the recent Puerto Rico case for the Court to have dealt with 3 U.S.C. 2, as you have suggested above, without that issue having first been brought up before the Court by any of the parties involved (neither Bush's attorneys nor the advocates for Gore made much of this statutory provision in their arguments before the Court- legally, they perhaps couldn't: Bush v. Gore, after all, was an appeal from State court cases involving issues arising under the Florida election laws in question [as well as their interpretation and application by those same State courts] and their relationship to the Federal Constitution; the issue of the relationship of possibly relevant Federal statutes to the Federal Constitution would not naturally be part of such a case [where Federal statutes were, in fact, employed by the parties in the context of their respective arguments, it was kept within the parameters of how those statutes might- or might not- have "pre-empted" or "trumped" State law at issue]).

The U.S. Constitution requires- in the language of Article III, section 2- "cases" or "controversies" in order for the Court to act (similar language exists in the Constitutions of the several States; even in States which allow their highest court to give so-called "advisory opinions" to State officers and/or government agencies absent such cases or controversies, it is made clear that a final determination of constitutionality must be the result of just such a case or controversy brought to the court of last resort on appeal). One side (which may be made up of more than one party with slightly different legal agendas- as was the case in Bush v. Gore, where you saw an attorney for Texas Governor [now President-elect] Bush and another attorney for Florida Secretary of State Katherine Harris) presents its best legal arguments, the other side (in this case, that of Vice President Gore) then presents their best arguments; the term for this- inherited from the roots of American jurisprudence in English Common Law- is "determination of the case [or issue]". In our Legal System, a court must be presented with the legal issues which are at the heart of the actual dispute between the parties before it can decide how to apply the law (whether constitutional provision, statute, administrative regulation, earlier case law) to the resolution of that dispute. A court will not- or, at least, should not- take up a case for decision unless the issue has been "joined" (originally, in Common Law days, the two parties themselves had to- through an exchange of writs- join the issue before the court would even hear it; nowadays, the court decides how- and even if- the issue has been joined); a court most assuredly CANNOT simply say: "That's all well and good, fellas- but WE think we should interpret THIS law over here which you did not bring up and apply IT to this case!" A court that would do so would clearly be activist to the max!!

That is why I said at the end of my original response that there were no "real good alternatives" re: this recent election dispute. Your suggestions are fine as they stand, but they were not brought by the lawyers for the parties to the dispute central to the case of Bush v. Gore into the courtroom where the Court could have acted upon them without engaging in grave judicial activism not altogether different from that the Puerto Rico District Court engaged in several months ago. The U.S. Supreme Court was stuck with what it had been given by the contending parties in its attempt to fashion a legal solution to what was, in essence, a political problem; perhaps the Court should have reached back to Chief Justice Taney's opinion in the case of Luther v. Borden (outlined in one of my earlier Commentaries) and simply declared this a "political question" the judiciary dare not answer.

I think we both can agree that it would have been all the wiser- and less of an exceeding of its authority- for the Court to have stayed out of this: to- as you said- "allow Congress to have handled the problem". However, I just wanted to make it clear that the Court's options were- in fact- much more limited than you have suggested above.

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