First comment: When the Florida Supreme Court measures the constitutionality of the action by the legislature to designate the method for selection electors is irrelevant to the issue presented by Mr. Bush. Taking Mr. Bush’s assertion to its logical conclusion, the Florida legislature has no check on its efforts to designate a method for selecting electors other than the United States Constitution; the Florida Constitution is meaningless. This seemingly absurd result is not necessarily unreasonable under the language of the United States Constitution, although I will note that it is quite possible that the Supreme Court failed to get five votes for overturning the action of Florida’s Supreme Court because Ms. O’Connor (and possibly Mr. Kennedy) weren’t willing to sign onto this legal theory, which would have resulted in a plurality opinion and a split court with more dissenters than any one group of assenting justices. The Supreme Court hates messy results like that.
Let’s please get back to the original post. My point in this matter is to test the constitutional underpinnings of what the Supreme Court did. We accept that the Supreme Court has the power to review decisions of state ‘supreme’ courts (I have to keep in mind that New York’s highest court is its Court of Appeals, and its Supreme Court handles trials…) when those courts base those decisions on application of federal law. Thus, for instance, if I appeal my criminal conviction to the Supreme Court of California on the basis that the State violated my rights under the Fourteenth Amendment by illegally searching my car for evidence without a warrant, the Supreme Court of the United States has the power to review what the California court says about application of the federal constitution to my case.
Let us further accept that the Supreme Court can, as an exercise of that jurisdictional power (granted to it by Article III of the Constitution), vacate a state court’s opinion on the ground that the state court failed to establish in its opinion if the fact it cited federal law meant it was relying on that law to reach its conclusion. We can accept such a result on the theory that a state court applying federal law must make clear how it applies that law so that the Supreme Court can establish whether or not it has jurisdiction to review the determination of the state court. After all, it beats forcing the state court to ask a federal court for an interpretation of federal law, or forcing the Supreme Court into pointless effort.
BUT, that isn’t what happened here. So far, the Supreme Court isn’t even certain Florida’s Supreme Court applied ANY federal law, nor that its action actually violated federal statutory law or federal constitutional law. What we have, then, is the federal court asserting a power over the state court without even knowing if it is POSSIBLE they have jurisdiction over the decision.
Federal courts can’t just tell state courts what to do. Vacating the decision of the Florida Supreme Court appears to be an unconstitutional exercise of power by the Supreme Court. If the Supreme Court had delayed making a decision in the case until it received a further clarification from Florida’s court about what that court had done, that wouldn’t be an exercise of unconstitutional authority. But the purported effect of the action of the Supreme Court is to eliminate the legal effect of what the Florida Supreme Court did.
This, to me, is troubling. Federal courts are not supreme gods. The balance between federal and state courts is hard enough to maintain, without the federal court system attempting to undo that balance, especially when most people agree that the only reason that the federal court is taking its action is because it wants to avoid deciding an issue on the case as it stands. For the highest court in the land to thoughtlessly extend its power over state courts simply to punt the contest back to Florida is especially egregious.
This is not some esoteric issue I am raising. As an attorney, I can envision all sorts of attorneys gleefully rubbing their hands and thinking about how to use this newfound power of the court to affect the federal appeals process. “May it please the Court, we don’t even know if Wisconsin’s Supreme Court knew that its decision on voting rights might have an unconstitutional effect under federal law; let’s send it back to them for ‘clarification’.” How soon will it be before the Court uses THIS new power again, and again, to force a state court to re-write its opinion to take into account the possibility that they tread impermissibly on federal grounds, when it isn’t even clear that the allegation of impermissible action will be accepted by the Supreme Court on further review? The Supreme Court isn’t a school marm, making someone ‘get it right’, or ‘say it clearly, please’.
Bad facts make bad law, again and again. To paraphrase that newfound pop icon of philosophy, “Oops, we did it again, we played with the rules, got caught up in the case, oh baby baby…”
