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As framed by the Supreme Court briefs filed this week by the presidential contenders, the momentous Florida election case that will be argued on Friday is a complex test of a never-construed federal law and a rarely cited clause of the Constitution. But looming larger than the technical issues is the broad question of the proper place of judges and judging in the 21st century. “In the end, Bush v. Palm Beach County Canvassing Board turns out to be a referendum on the judicial role,” says Douglas Kmiec, a law professor at Pepperdine University. The Supreme Court will grapple with that issue when it decides whether the Florida Supreme Court, in construing state election laws, in effect created a new law in violation of federal provisions governing the selection of presidential electors. Then, the role of the judiciary will also be at stake when the justices sit down to write an opinion and decide just how boldly the Court should assert itself in the middle of a disputed presidential election. The justices are surely mindful that large segments of the public are looking to the Supreme Court to chart an overall resolution to the mess, even though the issues actually before the Court are narrowly drawn. Whether the Court embraces that expectation or shrinks from it — with a restrained decision or even a dismissal of the case — will likely have a major impact on the legacy of the Rehnquist Court. Led by Chief Justice William Rehnquist, the Court has sought a lower profile, a less important role in the body politic. Long before the current dispute, other issues — among them abortion and the right to die — have not permitted the Court to fade from view. The Florida election dispute could be the case in which the justices remind the public that they are not the oracle that will solve all national problems. Curiously enough, it is lawyers for Democrat Vice President Al Gore that are asking the Rehnquist Court to recede from prominence in the case. “This dispute over the Florida Supreme Court’s interpretation of the Florida Election Code is a state-law case that, despite its undoubted importance, does not belong in federal court,” Gore lawyer Laurence Tribe wrote in his brief filed Tuesday. The Florida Supreme Court, when it tried to square conflicting laws about the deadline for certifying votes and the availability of recounts, played “a familiar and quintessentially judicial role,” according to Tribe. Bush’s attack on the Florida Supreme Court’s Nov. 21 decision is a broadside against the job of all courts, Tribe adds. “Not to rebuff that attack decisively would cast a shadow of illegitimacy over much of the indispensable and wholly lawful work of this Court and of state and federal courts throughout the nation,” the brief states. But Bush lawyer Theodore Olson seeks in his brief to distinguish what the Florida Supreme Court did from what other appellate courts ordinarily do. By extending the recount deadline, Olson states, “the court below strayed so far from the framework established by the Florida legislature that its unconstitutional exercise of authority over the electoral process is patent.” Adds Joseph Klock Jr., lawyer for Florida Secretary of State Katherine Harris: “The rules articulated by the Court are not based on the statutory language and were not a foreseeable judicial interpretation of the Election Code.” That argument may appeal to conservative justices who don’t want the judiciary to go beyond the letter of the laws as written. But most of the justices –conservative or otherwise — also have a sense that the judiciary has broad equitable powers to fashion solutions when laws have gaps or inconsistencies. Even Justice Antonin Scalia, as Tribe reminds the Court in his brief, once opined, “I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense ‘make’ law.” State courts are part of the governmental system, Tribe says, adding that legislatures — including Florida’s — have long recognized that role. “Our constitutional structure is based upon dual sovereignty,” wrote Florida Deputy Attorney General Paul Hancock in a brief for the state attorney general. “When questions of state law arise, the state judiciary is the proper, final arbiter of the meaning of state law.” As something of an afterthought, several of the briefs in the case suggest that the Supreme Court’s ruling will make no difference in the election outcome. Gov. George W. Bush wants the Florida Supreme Court ruling reversed, but Bruce Rogow, representing the Palm Beach County Canvassing Board, says “there would be no immediate consequences” if that occurred. Bush’s goal of being certified the winner in Florida was “delayed, not denied. Setting aside the Supreme Court of Florida’s decision would not change the certified election outcome,” says Rogow. In an ordinary case, that calculation would probably trigger a motion to declare the case moot. But the case has become larger than the specific dispute it involves. Whether the Supreme Court decides it using broad strokes or narrow ones could be as important for its legacy as who wins or loses.

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