X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Inside a rented mansion in Miami, away from the constant flow of e-mail, Harvard Law School professor Laurence Tribe is fashioning the strategy he will use on behalf of Vice President Al Gore on Friday in the U.S. Supreme Court argument that could determine the 2000 presidential election. On the other side of Bush v. Palm Beach County Canvassing Board, No. 00-836, the epicenter appears to be the D.C. offices of Gibson, Dunn & Crutcher, where partner Theodore Olson is coordinating a team of lawyers crafting arguments on behalf of Gov. George W. Bush. But while the key lawyers prepare, uncertainty about Friday’s oral argument abounds. There is scant legal scholarship and precedent backing up the issues the Supreme Court has agreed to consider. And with only four days to go, many important logistical issues normally worked out weeks if not months before a hearing are just beginning to be addressed. Chief among the unanswered questions: In a case with multiple litigants, not to mention a flock of top lawyers on all sides, who will get to argue before the justices? Current speculation has Olson standing in for Bush, and Tribe for Gore and the Florida Democratic Party — dividing most of the 90 minutes allotted. But, depending on how the justices rule on not-yet-filed motions, it is likely that each of the veteran Supreme Court advocates will yield at least 10 minutes to other parties. Florida’s Republican-led legislature, not yet a direct party in the litigation, has hired a Harvard law professor of its own: Charles Fried. Solicitor general from 1985-89 and more recently a judge on the highest state court in Massachusetts, Fried will represent the legislature’s view that the Florida Supreme Court acted improperly. Fried, or a lawyer for Secretary of State Katherine Harris, will certainly file a brief and could seek argument time. On the Gore side, various Florida election officials as well as Attorney General Robert Butterworth, a Democrat who was a key strategist in Gore’s campaign, are named as parties in the litigation and might also want a piece of the action. Motions for divided argument are likely to be filed on Monday, and the Court should respond quickly. The main briefs of both parties, meanwhile, must be filed by 4 p.m. Tuesday, according to the Court’s expedited schedule. Reply briefs, in turn, are due by 4 p.m. Thursday — a scant 18 hours before oral argument. A decision could come soon after that: The Court has rearranged its schedule so that Wednesday, Dec. 6, previously booked for two oral arguments, is free all day. But more vexing for the lawyers than the compressed schedule is how to argue the case — so narrowly drawn legally but set against the backdrop of the highly-politicized presidential contest. The validity of the hand recount in constitutional terms is not at issue. Instead, the Court will decide the validity of the Florida Supreme Court’s Nov. 21 decision allowing the recounts to continue and be certified beyond the statutory limit. The Court also wants the parties to opine on the possible consequences if it were to reverse the state high court — a tricky question, given the fast-breaking developments that could make it impractical for the Court to turn back the clock on the recounts. Ordinarily, most Supreme Court scholars agree, these are questions the U.S. Supreme Court would have little interest in answering and great incentive to avoid. But the Bush appeal, in a masterstroke of legal excavation, unearthed two rarely invoked federal provisions — one statutory, one constitutional — that gave the justices enough to chew on. The first is 3 U.S.C. 5, a law dating back to 1887 that the Supreme Court has never interpreted. It requires that any dispute over the appointment of presidential electors be resolved according to “laws enacted prior to” Election Day. So the Bush legal team’s primary task will be persuading the Supreme Court that a statutory interpretation of Florida law by the Florida Supreme Court amounts to a post-election enactment of a law. In addition to the Supreme Court’s now-commonplace divisions over state and federal relations, that question could provoke debate among justices over the very nature of judging in cases that involve the interpretation of conflicting laws — whether it is, at base, an interpretive or a legislative act. The Gore legal team will argue that the 1887 law, as antique as it is, anticipated what happened last week by including a catch phrase that allows for “judicial or other methods or procedures” to resolve electoral disputes as well. The Bush team omitted that phrase in both its petition for Supreme Court review and its reply brief. Gore also argues that what the Florida Supreme Court did was an “unexceptional” interpretation of two conflicting state laws: one that called for a Nov. 14 certification deadline, and one that allowed for hand recounts that could easily take longer to complete. The constitutional provision invoked by Bush also has been rarely interpreted: Art. 2, Sec. 1, which requires that presidential electors be chosen by states “in such manner as the legislature thereof may direct.” By superseding the legislative scheme last week, Bush argues, the Florida Supreme Court violated that clause. “The Constitution admits of no such post hoc alterations to the scheme of electoral appointments,” Olson argued in his petition to the Supreme Court. Tribe’s reply on behalf of Gore argues that Art. 2, Sec. 1, merely means that “the procedure for appointing electors is a matter of state law, the ultimate meaning of which must be determined by state, not federal courts.” That argument and others by Tribe are aimed at the current Supreme Court majority that zealously guards state prerogatives against federal intrusion. Those justices, who otherwise might be seen as favorable to Bush, are: Chief Justice William Rehnquist, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas. Picking off one or all of these justices will be Olson’s task at argument. Given the gravity of the decision facing the Court, Rehnquist might strive for the kind of unanimity that has accompanied other momentous Supreme Court rulings, including Brown v. Board of Education. But the crosscurrents on the Court on issues of federalism and judicial power make that a difficult task. As often occurs, it may be O’Connor who tips the balance. And her perspective is unique. In her days before joining the Supreme Court, she was both a state legislator and a state appeals court judge, giving her insight into both underlying protagonists in the case at hand. At her Senate confirmation hearing in September 1981, O’Connor was asked how her background might influence her as a justice. “I do well understand, I think, the difference between legislating and judging,” Justice O’Connor said. As a judge, she continued, “It is simply my role to interpret the laws which the legislature has passed. … I have discovered that that is not always easy and that sometimes legislators … fail to think about another situation that might arise that would be impacted by the legislation. Then the judge is left with the duty of trying to interpret the intent the best he or she can.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.