{"id":50234,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/all-partisans-all-the-time.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"all-partisans-all-the-time","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/all-partisans-all-the-time.html","title":{"rendered":"All Partisans All The Time"},"content":{"rendered":"\n
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ALL PARTISANS ALL THE TIME: The Florida Supreme Court And Its Critics <\/h1><\/td>\n <\/tr>\n

By BARTON ARONSON<\/h2><\/a><\/td>\n <\/tr>\n

Friday, Dec. 01, 2000<\/td>\n\n <\/tr>\n <\/table>\n

The problem with judicial opinions is this: you gotta read \u0091em to know what they say. And the problem with actually reading them is this: they\u0092re a lot duller than their press.<\/p>\n\n\n\n\n
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The reaction to the court\u0092s ruling has been nothing less than astonishing. There\u0092s a presidency at stake, so perhaps the reaction of the governor\u0092s campaign and its political supporters is understandable. The reaction of others is not. It is nearly impossible to find a pro-Bush politician, elder statesman, commentator, columnist, newspaper, radio talk-show host, or dog-catcher who will not declare that the ruling was a partisan decision rendered by Democratic appointees prepared to ignore the law to help the vice-president.<\/p>\n\n\n\n<\/b>

The Independent Judiciary<\/p>\n\n\n\n

Precisely because there is so much at stake in the effects of the court\u0092s opinion, it is easy to miss the fact that there is much at stake in talking about it, too. In the United States, courts are not supposed to be partisan. Those who insist, correctly, that a judge is not to treat a court case politically must recognize a corresponding obligation not to treat that judge\u0092s ruling as political, at least not lightly. Both<\/i> partisan judicial opinions and irresponsible accusations of partisanship aimed at judges are dangerous, because both serve to delegitimize the courts. Unfortunately, some of the reaction to the Florida Supreme Court\u0092s opinion fits this description.<\/p>\n\n

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To begin with, the party affiliation of a judge is not a useful way to begin talking about that judge\u0092s opinions. The political party of a judge, or the executive who appointed her, has proven a fickle compass for mapping a judge\u0092s behavior. There is research showing that a judge\u0092s political party is a strong predictor of the judge\u0092s votes. But there is also some truly spectacular evidence to the contrary. <\/p>\n\n\n\n

The most famous example is Earl Warren \u0097 Republican governor of California, overseer of Japanese internment during World War II, and Eisenhower appointee to the Supreme Court. Warren, of course, led the most liberal court of the century. Eisenhower called his appointment “the biggest damn fool mistake I ever made.” Countless presidents and governors have been similarly disappointed.<\/p>\n\n\n\n<\/b>

Florida\u0092s Election Law<\/p>\n\n\n\n

Turning to the opinion Florida\u0092s judges actually wrote, the most important though counterintuitive point is that, in determining whether the opinion is the result of partisanship, its effect doesn\u0092t matter at all. The court\u0092s decision was going to affect an election, no matter what. So the fact that it did is evidence of nothing. What matters is how<\/i> the court got to its result.<\/p>\n\n\n\n

\n\nThe essential problem before the Florida Supreme Court was this. A portion of the election law, enacted in 1951, says that the state “shall” ignore election results not reported by the counties within seven days after the election \u0097 no exceptions. That portion of the law does not provide for amending or supplementing those results in any way, and the state is bound to consider only those results in determining who won. After that, the only process available to an unhappy candidate is to protest or contest the election. <\/p>\n\n\n\n\n\n\n

There is one more relevant part of the statute. A candidate “may” request a manual recount any time during the seven days after the election, and a county canvassing board “may” honor the request. If it does so, then the canvassing board\u0092s discretion disappears: it must conduct a limited recount, and if that reveals errors that could affect the election, it must do a full recount (assuming the problem is not a computer glitch, a possibility specifically contemplated in the law).<\/p>\n\n\n\n

If you read just the 1951 provision, you would naturally conclude that the state cannot, as a matter of law, count late-filed county returns towards Florida\u0092s vote totals. In contrast, anyone reading just the 1989 provision would naturally conclude that the state has the power to decide whether to count late-filed returns. <\/p>\n\n\n\n

This is a genuine, undeniable legal conflict \u0097 not the namby-pamby kind a truly political judge might invent in order to rule as he would like. Does the state have discretion, or doesn\u0092t it? No matter what the court says, one provision or the other has to be limited, or modified, or ignored. <\/p>\n\n\n\n<\/b>

The Florida Supreme Court\u0092s Opinion: Judging as Usual<\/p>\n\n\n\n

When statutes contain internal conflicts such as these, judges of all stripes usually resort to the so-called “canons of interpretation” \u0097 a set of rules, crafted over time, by which judges read statutes \u0097 for resolving the conflict. That is, in fact, what America\u0092s foremost conservative jurist, U.S. Supreme Court Justice Antonin Scalia, recommends. In his excellent 1998 essay, A Matter of Interpretation, <\/i>Justice Scalia argues that the canons are the right tools for figuring out what the law is when the law is unclear.<\/p>\n\n\n\n

That is precisely what the Florida Supreme Court did.<\/p>\n\n

Perhaps the most important part of the Court\u0092s approach was to interpret the whole election law, not just the provisions directly at issue. After all, the 1951 provision (“shall” ignore recounts) and the 1989 provision (“may” ignore recounts), are not the only ones; there is also the third provision setting out the rules for recounts. <\/p>\n\n\n\n

A recount can legally be requested, and the request legally granted, an hour before the seven-day deadline. Again, at that point the procedures \u0097 a limited recount, followed by a full one \u0097 become mandatory. Yet a county canvassing board faithfully following the recount laws as the result of an eleventh-hour recount request could find itself knee-deep in chads when the deadline in the 1951 provision ticks away.<\/p>\n\n

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And there\u0092s more. The recount provisions provide for personal fines to be paid by the canvassing board members for late submissions. If late submissions had to be ignored, why on earth would the board bother to risk the fines for late submissions? <\/p>\n\n\n\n

In addition to making sure that its interpretation of one provision did not cancel out several others, the court invoked several other canons of construction with unimpeachable Florida pedigrees. It noted, to take only one example, that when harmonizing conflicts, later-passed provisions are given precedence \u0097 so the 1989 provision should trump the 1951 provision, and the proper rule is that the Secretary “may” ignore recounts, not that she must.<\/p>\n\n\n\n<\/b>

The Partisans of Partisanship<\/p>\n\n\n\n

The point of this short tour of the Florida Supreme Court\u0092s decision is not that the court reached the only possible fair result. A different court could have come out differently. The point, rather, is that the court\u0092s decision is unobjectionable by all the usual standards. <\/p>\n\n\n\n

Indeed, if the situation were completely reversed, Governors Bush\u0092s lawyers could have made \u0097 without embarrassment \u0097 the same arguments, using the same tools, as Vice-President Gore did. Because of the circumstances, the court\u0092s decision affects an election. But that does not make it a partisan decision. In the end, the accusations of partisanship say far more about the accusers than about the court.<\/p>\n\n\n\n

There is a larger point, too, that goes beyond the debased dialogue about our courts. It is this. It should be possible for commentators and columnists \u0097 and even the parties\u0092 elder statesmen \u0097 to be more nuanced and fair than the politicians themselves. It should be possible to say out loud that, for example, the Florida Supreme Court\u0092s opinion was reasonable, but that the Gore campaign\u0092s position on counting “dimpled” ballots is not. It should be possible to agree with our opponents when we think they are right. This November\u0092s wind has been especially chilly. It should be possible to conduct at least some of our public debate in the temperate zones. <\/p>\n\n\n\n\n\n\n<\/span>\n\n

\n\n\nBarton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own. \n\n\n

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