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Seeking a way out of the Bush-Gore presidential dispute, the U.S. Supreme Court last week reached deep into its bag of procedural tricks and came up with an obscure device that provided more of a political than a legal escape. Pundits rushed to put the best face on the Court’s action. “A triumph for good sense and even for the rule of law,” declared University of Chicago law professor Cass Sunstein in The New York Times. The justices “put Florida’s Supreme Court on notice: There is adult supervision,” proclaimed columnist George Will in The Washington Post. But when held up to the light, the Court’s decision is exposed for what it truly is: a barely legitimate way to appear to do nothing and yet still discard the Florida Supreme Court’s Nov. 21 decision. At first glance, it’s hard to find fault with the U.S. Supreme Court’s seven-page opinion. The justices made it seem quite logical, even routine and mundane, that they would vacate the decision of the state supreme court and send the case back to clarify what role, if any, the Florida Constitution played in that ruling. The unsigned action by the justices cites their 1940 decision in Minnesota v. National Tea Co. as support for vacating and remanding, as if this precedent is one that lawyers with any exposure to the Supreme Court have at their fingertips. A brief look at reported decisions of the U.S. Supreme Court paints a very different picture. The vacate-and-remand procedure in Minnesota v. National Tea (a dispute over taxes on chain stores) is a rarely used, highly controversial device. There are very few occasions when the Court has disposed of a case by relying on this precedent. In nearly every previous instance, the justices were deeply divided over the propriety of the procedure. Consider a few curious details: � Although opinions by Chief Justice William Rehnquist and Justice Antonin Scalia have discussed Minnesota v. National Tea on two occasions in recent years, the last time the Court actually dispatched a fully briefed and argued case under this precedent was 1965 ( Department of Mental Hygiene of California v. Kirchner). � In the 60 years since it was issued, Minnesota v. National Tea has been used to dispose of only seven argued cases and four cases before they were argued — until last week. Of those 11 cases, there was at least one dissenting vote in all but one 1951 case. � In the 1983 case of Michigan v. Long, Justice John Paul Stevens suggested in his dissenting opinion that Minnesota v. National Tea had been overruled. � Even the author of Michigan v. Long, Justice Sandra Day O’Connor, criticized the vacate-and-remand device as “unsatisfactory both because of the delay and decrease in efficiency of judicial administration … and, more important, because these methods of disposition place significant burdens on state courts to demonstrate the presence or absence of our jurisdiction.” � The closest analogous procedure arises in criminal cases. In California v. Krivda (1972), which was not cited last Monday, the justices vacated and remanded a criminal case so that a lower court could clarify whether it had relied on defendants’ rights in the U.S. Constitution or on similar provisions in a state constitution. This maneuver was repeated often between 1972 and 1983, but has been dormant for the last 15 years. Indeed, Justice Rehnquist, before he became chief justice, criticized Krivda in a 1978 dissent, noting, “By vacating the judgment below, this Court is taking from appellants the normal burden of demonstrating that we have jurisdiction and placing it” on the state court ( Philadelphia Newspapers Inc. v. Jerome). If these points are not enough to make you wonder about the Supreme Court’s unusual action in the election case, consider the strongest criticism of the vacate-and-remand procedure. In December 1952, with a young Rehnquist serving as one of his law clerks, Justice Robert Jackson wrote a dissent in Dixon v. Duffy: Both the wisdom and the legality of this policy toward the highest court of a state appear dubious to me. What we are doing, in essence, is to vacate a state court judgment, not because it is found to be inconsistent with federal law, but because the state court has not told us, with an acceptable degree of formality, what reasons led to rendering it. … Doubt of our jurisdiction is no reason for exercising it; quite the contrary is the rule. The Minnesota v. National Tea decision did little to reassure him, Justice Jackson wrote, because it included “no examination of the Court’s power to vacate.” Apparently the only real attempt to examine that power was by Justice Scalia in Stutson v. United States (1996). In a dissent, he referred to the Court’s “limited power to vacate without first finding error below.” He explained that the vacate-and-remand procedure “originates in the special needs of federalism” to avoid “the risk of improperly reversing a judgment based on state law.” But even Scalia said that this policy has been “largely supplanted.” So how could the Court rely on this obscure, perhaps overruled precedent that was neither cited nor argued by any lawyer in the case? The absence of a sound legal explanation leads to the conclusion that it was a political escape. The Court had other options. After hearing argument, the justices could have dismissed the case as “improvidently granted” because it was not clear if there was a federal issue to decide. But that would have left the Florida Supreme Court decision in place — a solution clearly untenable to some of the justices. The Court could also have kept the case and certified a question to the Florida Supreme Court. Once that court answered the question, the U.S. Supreme Court would have ruled or dismissed the petition. But this approach would not have given the justices a way out, either for those who didn’t want to hear the case in the first place or for those who became convinced during briefing and argument that they could not resolve the dispute. While the Court may have taken the case with the goal of providing “adult supervision,” by turning to Minnesota v. National Tea the justices appear to have been playing games with the law. Stephen J. Wermiel is associate director of the Program on Law and Government at American University Washington College of Law and teaches constitutional law and a seminar on the Supreme Court.

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