Seriously, I’m stumped as to why the Supreme Court majority remanded the case to the FL Supremes, rather than just leaving it at a straightforward reversal.
The majority opinion really doesn’t leave any doors open with respect to a recount. On p.12 of the opinion, they say that any recount that met the 12/12 deadline would be unconstitutional, and then they add that extending the count to 12/18 would not be an “appropriate order” of the FL Supreme Court under 102.168(8), the statute that otherwise allows them to order pretty much any remedy they want.
So, as far as I can figure, the Supreme Court has remanded the case to the FL Supremes, but foreclosed any remedy applying to the present case.
But OTOH, the appropriate body to set statewide recount standards for future elections - at least, as a first rather than a last resort - is not the FL Supreme Court, but the FL legislature. So, as far as I can tell, there’s no point in remanding for reasons other than those having to do with the present case.
That about covers the waterfront. Any of our juris doctors care to weigh in on this? There must be an error in my reasoning, because a Supreme Court majority can’t be wrong.
I posed the same question in the other thread. It seems to me that it is a sneaky political fig leaf, to allow the majority to avoid declaring Bush president outright. But perhaps the legal experts will disgree.
The US Supreme Court is pulling some fancy footwork to avoid looking bad or partisan. Unfortunately they already damaged their credibility when they stopped the count last Saturday. Justice Scalia in his opinion to stop the count basically suggested that the American public couldn’t handle the truth so it was best left hidden from them. Given that this is offensive to the populace and that they’d probably find out the count eventually anyway (scholars are sure to study this for some time to come). Scalia is too conservative for my taste but I think he has a first rate mind and is a scholar. This really surprised me although I’ll admit that for some reason Scalia seems to have become more strident (for some reason) in his opinions of the last year or so.
I’m very depressed at this show from the Supreme Court. I always looked to them to be the one rational branch of the government and (mostly) unaffected by partisanship. I may not like a particular decision by the court but I could count on the decision to be well reasoned. As a result I could respect what they did even if I didn’t like it.
With the latest decision to remand to the Florida Supreme Court I have two thoughts:
It seems to abdicate their responsibility to put closure to this event. The Supreme Court is there to make the hard and big decisions. It may not always be a comfortable place but that’s their job and in this case they dodged it.
I believe the Supreme Court realized the decision they made to stop the counts on Saturday damaged their credibility (not so much that the count was stopped but the reasons they gave for stopping it). The decision to remand was a duck to avoid further harm to themselves as much as possible.
Just to be clear…my anger with the US Supreme Court is not due to their actual decision but rather the behavior they have displayed in handling it. I have lost respect for an institution I hold in high regard.
I thought appeals courts (which is what the USSC is) could only remand cases to the lower courts, and so on down the food chain to the original trial court, where verdicts are rendered. If they overturn a decision, the trial court has to change it and enter it themselves. But I agree it makes no practical difference - in this case, they’re requiring the FSC to do something (use statewide standards) while simultaneously forbidding it (it would make post-election law) to conduct a recount, therefore they can’t do it at all, and there’s no time left anyway due to their own stay.
I’ve read somewhere that the Justices have a saying among themselves: “We’re not last because we’re right; we’re right because we’re last.”
I know I’m probably wrong here, but IMHO…
I think what the USSC did was to tell the FLSC the logic/law they have been using so far in this case is wrong, had they based the recounts on somthing that could have stood up to Constitutional scutiny it would have been o.k.
The reason they remanded it as apposed to over turning it is that they (USSC) did not want to set any precedent that would preclude future elections from being recounted fairly.
Also had the FLSC acted with good logic/law as a basis of their decision in the first place, the time factor would not have been an issue. Since they did not, it came back to bite them in the ass.
The problem was that the recount was handled sloppily – so sloppily that tables within the same precinct counted would have counted the same dimpled chad ballot differently. And that means that the recount was patently UNFAIR.
Since the FL SC dropped the ball and did not answer the burning question early on – What uniform standard should we use to count these votes? – the SCOTUS justices felt they had no choice but to vacate the order for the recount. Even 2 of the dissenting judges thought the recount had serious equal protection issues. Therefore, the plaintiffs simply ran out of time. Had Dec. 12th not loomed on the horizon, I daresay the counties would be recounting all the undervotes as we speak, with a set of clear cut rules about what is a vote and what is NOT a vote.
I certainly hope the FL legislature defines a standard very soon.
Bricker can check me on this, and let me know where, if at all, I am wrong.
The short answer is that the ‘remand’ resulted from the fact that the entire decision of the Florida court was not reversed, so the Florida court will have to modify what it did to resolve the issues presented to it by the appeal upon which it ruled. You will note that the Court did not hold that the protest should be denied, only that the result of the protest could not be a recount.
The somewhat longer answer, or more general answer, is that the court, in essence, ALWAYS ‘remands’ any case which has come before it on writ of certiorari from a state court. A writ of certiorari is a command from the Supreme Court to the state court that it forward the case file to the Supreme Court for the purpose of allowing the Supreme Court to review the case and rule on such federal law questions as may exist. Having so ruled, it returns the case to the state court since the state court has the jurisdiction over the disposition of the case. Whether or not the state court will have to do anything will depend on the issue resolved and the facts of the case.
This is interesting, because the initial impression of the legal analysts looking at the result was that the word “remand” was good news for Gore. Acording to your explanation that the remanding was standard procedure, these analysts missed the boat completely.
