(The Return of) Ignatz, by Sam Heldman

Thursday, October 03, 2002

Lawyers are now speculating as to whether the U.S. Supreme Court will step in to the New Jersey mess. Eugene Volokh, though not apparently taking sides, says there's an arguable basis for the Supreme Court to step in and to rule for the Republicans: the argument, last heard in Bush v. Gore, that rules for federal elections are the province of state legislatures rather than state courts. It's worth remembering, though, that this argument in the end swayed only three Justices (the ones farthest-to-the-right) in Bush v. Gore. The argument was mused about in the unanimous but legally worthless (in the sense that it contained no actual holding as to any principle of law) Bush v. Palm Beach; but again, the argument wasn't accepted there by the unanimous court, it was just mused about. When push came to shove -- when the time for musing had passed, and the time for holdings was at hand -- only Justices Rehnquist, Scalia, and Thomas bought the argument. This doesn't mean that the argument would be a dead loser in the New Jersey case, but does suggest that it would be an uphill battle. As others have said, the lesson from Bush v. Gore is that one should make no predictions about the limits of what the Supreme Court might do.

In fact -- consistent with my belief as mentioned below that mobilized public reaction to election-law decisions is more important than the election-law decisions themselves -- I somewhat hope that the Supreme Court does step in and rule for the Republicans. That (in conjunction with Bush v. Gore itself) -- the prospect of the Supreme Court trying to be king-maker for both of the other branches of government, in a way that smells fishy to the partisans among us -- would mobilize voters in a big way. Torricelli, placed back on the ballot by the Justices, would waltz to a victory thanks to the anti-SupremeCourt-backlash and then could either resign in favor of Lautenberg or not, and the Democrats would take other Senate seats in a landslide, and balance on the Supreme Court would become THE public issue for the next couple of years. I hope they don't disappoint me by denying cert.

UPDATE: Thanks to Atrios for reading and linking. In case anybody's interested, my own view is that the Republicans' argument -- which is, in my paraphrase, that the Constitution empowers the U.S. S.Ct. to decide whether the state S.Ct. was doing a really bad job of interpreting the state statutes -- is contrary to our whole jurisprudential understanding of the relationship between state and federal courts, and of the relationship between courts and legislatures. Every day of every year, courts "interpret" statutes to mean things that aren't mentioned anywhere in the statutory text -- even to mean things that seem obviously contrary to the statutory text. (My favorite example is the U.S. Supreme Court's "interpretation" of 42 U.S.C. sec. 1983 as including a whole array of unique and sometimes made-up defenses, despite the statute's simple command that if you violate my constitutional rights you will be liable to me for damages). This does not mean that, when they do that, the courts are doing something other than interpreting the statutes; that's just the way the law is and has been. Statutes don't interpret themselves, you know. It's also perfectly settled law, that state courts' interpretation of state statutes are authoritative; the federal courts don't get to second-guess them. So any attempt by the Supreme Court to say, "sure that's true in general, but THIS particular interpretation of this particular statute is really really wrong, so we're going to override it" would be so subjective and ad-hoc -- so unworkable a standard, and so susceptible to partisan manouevering by the S.Ct. itself -- that it would be really bad constitutional law.

posted by sam 12:43 PM 0 comments


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