SUPREME COURT CASES OF NOTE 2006-2007 SESSION

Who were the winners and losers?
Former V-P Al Gore; Congressman Shays and Kay Maxwell; Washington D.C. crowd.

The Supreme Court of the United States:  previously...

High Court In For Another Eventful Term;  Hot-button issues are looming, again with Kennedy in the middle 
DAY
By Robert Barnes, The Washington Post    
Published on 10/1/2007 

Washington — After a bruising term that featured more close decisions and ideological splits than in its recent history, the Supreme Court begins its new term Monday with more of the same: emotional, complex and sometimes partisan issues that divide the justices as well as the nation.

The court's high-profile agenda features a fourth examination of how the Bush administration and Congress deal with terrorism detainees, a separation-of-powers case that tests the limits of a president's power, and a host of discrimination and employment law cases. Last week, justices added the constitutionality of lethal injection to the list and said they would, in the midst of the 2008 presidential election, decide a fiercely partisan battle on voting rights.

Waiting in the wings from the District of Columbia is a potential showdown on the meaning of the Second Amendment and gun rights.

“The court is showing a willingness to keep on taking these kinds of issues even though they are going to be divisive,” said Richard Garnett, a law professor at the University of Notre Dame and former clerk to the late chief justice William Rehnquist.

But if there is a difference this year, it could be that the court — balanced with four reliable conservatives, four reliable liberals and one man in the middle with an outsized influence — might teeter occasionally more to the left.

That is because Justice Anthony Kennedy's starring role last term — he was the only justice in the majority in each of the court's record number of 5 to 4 decisions — seems likely for an encore but in a different direction.

While Kennedy's conservative views on abortion and campaign finance laws grabbed attention then, “the menu for this term is shaping up to be the other way around,” Garnett said. For instance, Kennedy has voted against the government in each of the detainee cases the court has heard, and his past opinions signal the central role he is likely to play again in other areas.

“This current court is going to be about as conservative or about as liberal as Justice Kennedy,” Solicitor General Paul Clement, who represents the federal government before the court, said in a speech this summer.

“The court (last term) had a number of cases — important, high-profile cases — where Justice Kennedy's jurisprudence” happened to match that of Chief Justice John Roberts Jr. and the other conservatives, Clement said. “But there are certain other areas that have been, and will be again, where Justice Kennedy's jurisprudence is like that of Justice (John Paul) Stevens” and the court's other liberals.

One thing is certain, the term will tell much about the still-evolving nature of the court — Roberts has just passed his two-year anniversary on the bench, and the newest justice, Samuel Alito Jr., has served only 20 months. The still-new chief justice has established clear conservative credentials but has fallen short in his search for more unanimity on decisions.

Roberts is only two months away from a scary incident that made the chief justice the lead story in newspapers and network news shows, when he suffered a seizure at his vacation home in Maine on July 30.

Roberts continued his vacation after a night's stay at the hospital and has looked hale at recent public appearances, two speeches at universities and a judicial conference in Canada. He has not talked about the incident publicly, and a court spokeswoman said last week that he had no comment about what follow-up tests might have revealed or whether he is taking medication.

Roberts' role on the court and the justices' decisions this term will be seen through the prism of the 2008 elections.

The justices themselves hate being lumped into groups: Roberts, Alito and Justices Antonin Scalia and Clarence Thomas on the right, Stevens and Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer on the left. They frequently point to areas of the law, such as sentencing, or to many business cases, where opinions are often lopsided, or at least the usual alignments are scrambled.

But the great majority of last term's 5 to 4 decisions broke along those patterns, with Kennedy voting twice as often with the conservatives as with the liberals. And the end of the term was particularly fractious, with the four liberals taking turns reading sharp dissents from the bench.

“I think last June they were pretty happy to get away from each other,” said Carter Phillips, a top Supreme Court practitioner at the law firm Sidley Austin.

Many Democrats and liberal activist groups are eager to make the court's more conservative stance last year a theme for 2008, saying it is important to have Democrats in charge of the White House and Senate when the next vacancy on the court occurs.

But Thomas Goldstein, who heads Akin Gump Strauss Hauer and Feld's Supreme Court practice, wrote a provocative post for ScotusBlog.com arguing that the controversial cases on the court's agenda this year might aid conservatives in making the court an issue.

“The leading cases will be ones in which the more liberal position is distinctly — even profoundly — unpopular with conservatives,” Goldstein wrote. “Even if the left ultimately does not win all of the five most significant cases of this Supreme Court term, that wing of the court will carry the banner for accused terrorists, crack dealers, child pornographers, child rapists, and those who want to forbid gun possession.”

And besides that, conservative activists — wary of Kennedy's ability to side with either wing of the court, depending on the issue — have never been as enamored of the court's work last year as liberals were outraged.

“It's a pretty good court,” said John Choon Yoo, the former Justice Department official who was a leader in advocating the Bush administration's expansive view of presidential power in wartime. “But it's not everything promised.”
Supreme Court to Hear Voter ID Case
By MARK SHERMAN | Associated Press Writer
10:47 AM EDT, September 25, 2007

WASHINGTON - The Supreme Court agreed Tuesday to decide whether voter identification laws unfairly deter the poor and minorities from voting, stepping into a contentious partisan issue in advance of the 2008 elections.

The justices will hear arguments early next year in a challenge to an Indiana law that requires voters to present photo ID before casting their ballots. The state has defended the law as a way to combat voter fraud.

The state Democratic party and civil rights groups complained that the law unfairly targets poor and minority voters, without any evidence that in-person voter fraud exists in Indiana. The party argued that those voters tend to be Democrats.

Courts have upheld voter ID laws in Arizona and Michigan, but struck down Missouri's. Earlier this month, a federal judge dismissed a challenge to Georgia's voter identification law, saying the statute does not impose a significant burden on the right to vote.

Election law experts had urged the court to take the Indiana case to instruct courts on how to weigh claims of voter fraud versus those of disenfranchisement. "The court better resolve this question before ballots start getting counted next fall," said Stanford University law professor Pamela Karlan.

The court is expected to issue a decision by late June, in time for the November general election.

The Indiana law enacted in 2005 was upheld by a federal judge and by the 7th U.S. Circuit Court of Appeals in Chicago. Before the law's passage, an Indiana voter had only to sign a poll book at the polling place, where a photo copy of the voter's signature was kept on file for comparison.

"The purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes," Judge Richard Posner said in his majority opinion.

But in a dissent, Judge Terence Evans said, "Let's not beat around the bush. The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by folks believed to skew Democratic."

The voter ID challenge was among 17 new cases accepted by the court in advance of the start of its new term on Monday.

The cases are Crawford v. Marion County Election Board, 07-21, and Indiana Democratic Party v. Rokita, 07-25.

A Setback For Women's Rights
Hartford Courant editorial
April 20, 2007

Women's hard-won equality eroded with the U.S. Supreme Court's ominous 5-4 decision Wednesday to bar a certain type of late-term abortion, regardless of consequences to the mother's health.

Justices Anthony M. Kennedy, John Roberts, Samuel A. Alito, Antonin Scalia and Clarence Thomas upheld a law passed by Congress in 2003 and overturned by six lower courts. The law makes it a crime for doctors to perform what opponents call partial-birth abortion.

In reality, this is a rarely used medical procedure termed Intact Dilation and Extraction. It is a gruesome procedure when described objectively, but so are other sometimes necessary medical treatments. Graphic scare tactics are a favorite ploy of anti-abortion zealots, but they are not an appropriate way to gauge medical necessity.

Justice Kennedy, writing for the majority, said the decision did not rob women of their constitutional right to abortion, as there are legal alternatives. But the decision makes it likely that those alternatives will be challenged. He cited Congress as an authority in concluding that the banned procedure was "never" medically necessary.

People with neither a uterus nor a medical degree have no authority to make that judgment. To eliminate a medical option, however rare, is a dangerous precedent, not to mention unconscionable. Ruth Bader Ginsburg, in her strong dissenting opinion, was appropriately outraged. "Today's decision ... tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists."

The sole woman justice had another reason for fulminating against her colleagues who put a fetus's health above the mother's. Justice Kennedy wrote that the ban was good for women because it protected them from having a procedure that they may not "fully understand" and would "come later to regret."

How patronizing. How galling. Justice Ginsburg, a living example of the equality of women and the strides they have made, was quick to point out that this thinking harks back to the turn-of-the-century paternalistic view of females as too dependent to make their own decisions.

The new court without the level-headed Sandra Day O'Connor is undermining a woman's right to choose. Congress must stop this unacceptable trend. Amend the 2003 law to leave room for medical judgment about the health of the mother. Better yet, overturn the ban entirely. It ties doctors' hands and sets a horrible precedent by politicizing medical treatment.

High Court Bans Partial-Birth Abortion;  5-4 ruling could be stepping stone for further erosion of Roe v. Wade
DAY
By Mark Sherman, Associated Press Writer 
Published on 4/19/2007 
 
Washington — The Supreme Court's new conservative majority gave anti-abortion forces a landmark victory Wednesday in a 5-4 decision that bans a controversial abortion procedure nationwide and sets the stage for further restrictions.

It was a long-awaited and resounding win that abortion opponents had hoped to gain from a court pushed to the right by President Bush's appointees.

For the first time since the court established a woman's right to an abortion in 1973, the justices said the Constitution permits a nationwide prohibition on a specific abortion method. The court's liberal justices, in dissent, said the ruling chipped away at abortion rights.

The 5-4 decision written by Justice Anthony Kennedy said the Partial Birth Abortion Ban Act that Congress passed and Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.

Siding with Kennedy were Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, along with Justices Antonin Scalia and Clarence Thomas.

The law is constitutional despite not containing an exception that would allow the procedure if needed to preserve a woman's health, Kennedy said. “The law need not give abortion doctors unfettered choice in the course of their medical practice,” he wrote in the majority opinion.

Doctors who violate the law could face up to two years in federal prison. The law has not taken effect, pending the outcome of the legal fight.

In dissent, Justice Ruth Bader Ginsburg said the ruling “cannot be understood as anything other than an effort to chip away at a right declared again and again by this court.”

Dr. LeRoy Carhart, the Bellevue, Neb., doctor who challenged the federal ban, said, “I am afraid the Supreme Court has just opened the door to an all-out assault on” the 1973 ruling in Roe v. Wade.

The administration defended the law as drawing a bright line between abortion and infanticide.

Reacting to the ruling, Bush said that it affirms the progress his administration has made to defend the “sanctity of life.”

“I am pleased that the Supreme Court has upheld a law that prohibits the abhorrent procedure of partial birth abortion,” he said. “Today's decision affirms that the Constitution does not stand in the way of the people's representatives enacting laws reflecting the compassion and humanity of America.”

It was the first time the court banned a specific procedure in a case over how — not whether — to perform an abortion.

Abortion rights groups as well as the leading association of obstetricians and gynecologists have said the procedure sometimes is the safest for a woman. They also said that such a ruling could threaten most abortions after 12 weeks of pregnancy, although Kennedy said alternate, more widely used procedures remain legal.

The outcome is likely to spur efforts at the state level to place more restrictions on abortions.

“I applaud the Court for its ruling today, and my hope is that it sets the stage for further progress in the fight to ensure our nation's laws respect the sanctity of unborn human life,” said Rep. John Boehner of Ohio, Republican leader in the House of Representatives.

Jay Sekulow, a prominent abortion opponent who is chief counsel for the conservative American Center for Law and Justice, said, “This is the most monumental win on the abortion issue that we have ever had.”

Said Eve Gartner of the Planned Parenthood Federation of America: “This ruling flies in the face of 30 years of Supreme Court precedent and the best interest of women's health and safety. ... This ruling tells women that politicians, not doctors, will make their health care decisions for them.” She had argued that point before the justices.

More than 1 million abortions are performed in the United States each year, according to recent statistics. Nearly 90 percent of those occur in the first 12 weeks of pregnancy, and are not affected by Wednesday's ruling. The Guttmacher Institute says 2,200 dilation and extraction procedures — the medical term most often used by doctors — were performed in 2000, the latest figures available.

Six federal courts have said the law that was in focus Wednesday is an impermissible restriction on a woman's constitutional right to an abortion.

“Today's decision is alarming,” Ginsburg wrote in dissent for the court's liberal bloc. She said the ruling “refuses to take ... seriously” previous Supreme Court decisions on abortion.

Ginsburg said the latest decision “tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists.”

Ginsburg said that for the first time since the court established a woman's right to an abortion in 1973, “the court blesses a prohibition with no exception safeguarding a woman's health.”

She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.

The procedure at issue involves partially removing the fetus intact from a woman's uterus, then crushing or cutting its skull to complete the abortion.

Abortion opponents say the law will not reduce the number of abortions performed because an alternate method — dismembering the fetus in the uterus — is available and, indeed, much more common.

In 2000, the court with key differences in its membership struck down a state ban on partial-birth abortions in a challenge also brought by Carhart. Writing for a 5-4 majority at that time, Justice Breyer said the law imposed an undue burden on a woman's right to make an abortion decision in part because it lacked a health exception.
Reshaped U.S. high court takes abortion case
By James Vicini
February 21, 2006

WASHINGTON (Reuters) - The U.S. Supreme Court said on Tuesday it will decide whether a ban on some abortion procedures is unconstitutional, a case that could show if the reshaped court will restrict a woman's right to an abortion.  The justices agreed to review a U.S. appeals court ruling that declared unconstitutional the Partial-Birth Abortion Ban Act, signed into law by President George W. Bush in 2003, because it lacks an exception to protect the health of a pregnant woman.

"The Supreme Court's decision to hear this case is a dangerous act of hostility aimed squarely at women's health and safety," said Cecile Richards, president of
Planned Parenthood Federation of America. "Despite 33 years of Supreme Court precedent that women's health matters, the court has decided it will once again take up this issue."

In taking the case, the high court will again be tackling one of the most contentious issues it has faced since its landmark Roe v. Wade ruling in 1973 that women have a constitutional right to abortion.  The court's action was announced with new Justice Samuel Alito joining Chief Justice John Roberts on the bench of the nine-member court. The conservative Alito, Bush's second pick for the high court confirmed in the past year, replaced Justice Sandra Day O'Connor, who often cast the decisive vote in support of abortion rights before she retired.

The law has never been enforced because of court challenges and six different federal courts around the country have all found it to be unconstitutional. The Justice Department asked the Supreme Court to uphold the federal law as constitutional.  When it passed the legislation after nine years of debate, the U.S. Congress decided not to include an exception for a woman's health, even though a Supreme Court ruling in 2000 on a similar Nebraska law required such an exception.

The law contains an exception when the abortion is necessary to save the life of the mother, but not one to preserve the woman's health. Any physician who knowingly performs the procedure faces up to two years in prison.  The U.S. Justice Department said the phrase "partial birth abortion" is commonly used to describe a late-term procedure known as "dilation and extraction" or "intact dilation and evacuation."

Opponents of the law said it also would ban a more frequently used abortion procedure known as standard dilation and evacuation. That procedure is the most common one in the second trimester of pregnancy, they said.

DOCTORS CHALLENGE LAW

The case before the Supreme Court involved a challenge to the federal law by Dr. LeRoy Carhart and three other physicians. Carhart also brought the successful challenge to the Nebraska law.  In asking the court to hear the appeal, Solicitor General Paul Clement of the U.S. Justice Department said, "This case involves the constitutionality of a significant act of Congress that has been invalidated,"  Fifteen states -- Alabama, Arkansas, Colorado, Florida, Idaho, Kansas, Michigan, Missouri, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Virginia -- supported the appeal.

Attorneys from the New York-based Center for Reproductive Rights opposed the appeal. They said the government seeks in effect to have the Supreme Court overrule its 2000 decision requiring a health exception.  Any weakening of this "would represent a significant retreat from more than three decades of this court's jurisprudence striking down any abortion regulation that failed to protect pregnant women's health," they said.

The Supreme Court ruled unanimously last month that a New Hampshire abortion law should not have been struck down entirely when the problem involved only the part of the law that lacked an exception for a pregnant minor's health emergency.

Supreme Court to decide campaign-spending limits
By James Vicini, September 27, 2005

WASHINGTON (Reuters) - The U.S. Supreme Court said on Tuesday it would decide the constitutionality of a state law that strictly limits how much money political candidates can spend, an important campaign-finance issue that it last addressed nearly 30 years ago.

The justices agreed to review a ruling in 2004 by a U.S. appeals court that upheld Vermont's campaign finance law on the grounds that it does not violate constitutional free-speech rights.

The Supreme Court in a landmark 1976 ruling struck down as unconstitutional federal campaign-spending limits that had been adopted by the U.S. Congress after the Watergate scandal, but it allowed limits on political contributions.

The appeals court ruled that Vermont can limit campaign spending to stem what it said was a corruptive political influence that money can have and to relieve candidates from devoting so much time to raising large sums of money.

The decision was the first by a federal appeals court to uphold candidate-spending limits since the 1976 Supreme Court ruling. Other appeals courts have struck down similar limits.

The Vermont law limits spending by candidates for governor to $300,000, for lieutenant governor to $100,000 and other statewide races to $45,000. It also limits spending on races for the state legislature.

The law, which also imposes strict limits on contributions to candidates, was adopted in 1997 and had been supported by then-Vermont Gov.
Howard Dean, who is now the Democratic Party chairman after an unsuccessful presidential campaign in 2004.

While the high court has not addressed spending limits since 1976, it upheld in 2003 a federal campaign-finance law that bans unregulated "soft-money" contributions to political parties. The law also restricts some television and radio "issue ads" by corporations and unions before elections.

NATIONAL IMPORTANCE

The Vermont Republican State Committee, the Vermont Right to Life Committee, the Libertarian Party of Vermont and a group of candidates and voters had challenged various aspects of the state law in separate cases.

In one appeal to the Supreme Court, attorneys for the opponents of the law said the case raised issues of "obvious national importance" and that only the Supreme Court can change the constitutional rules on political campaign financing.

In another appeal, attorneys for the opponents said the case "goes to the heart of the democratic process" and involved the right to freedom of speech.

Even supporters of the law, including Vermont Attorney General William Sorrell, and the National Voting Rights Institute, agreed that the issue warranted Supreme Court review.

Attorneys for the National Voting Rights Institute said unlimited campaign spending has created relentless pressure on officeholders to become full-time fund-raisers and has led to incumbents amassing large amounts of money to deter competitors from entering the race.

In an unrelated case, the justices also agreed to decide whether a three-judge federal court correctly dismissed a constitutional challenge by the Wisconsin Right to Life group to the federal ban on using corporate treasury funds to finance "electioneering communications."

The nonprofit group argued the ban was unconstitutional as applied to its three broadcast advertisements in 2004 critical of Sen. Russell Feingold's record on vote-blocking filibusters for judicial nominees. Feingold, a Wisconsin Democrat, was running for re-election at the time.

The Supreme Court is expected to hear arguments in the Wisconsin and Vermont cases in January, with rulings due by the end of June.

November 27, 2000

News Analysis: Justices Ready to Walk a Very Fine Legal Line
By LINDA GREENHOUSE
 

WASHINGTON, Nov. 26 — By seizing a central role for itself in sorting out the legitimacy of Florida's presidential vote count, the Supreme Court put on the line its own legitimacy as an institution able to rise above partisan rancor and to serve as a fair and neutral arbiter, the honest broker that many people have found absent from the scene so far.

It is a role that carries both risk and reward. The judgment of history on the Rehnquist court, now in its 15th year, may very well depend on the court's performance in this case: on the sobriety of its tone, the persuasiveness of its reasoning and the unanimity of result or, at the least, the civility between the majority and the dissent.

While the Supreme Court is no stranger either to raging controversy in general or to highly charged political drama — Richard M. Nixon's appointee as chief justice, Warren E. Burger, signed the 8-to-0 opinion in the Watergate tapes case, which led directly to the president's resignation — the current context is extraordinary in several respects.

On the most obvious level, the justices are now in a position to shape the outcome of a presidential election in which not only the court itself but individual justices featured prominently as campaign issues.

The campaign was marked by speculation, as rampant as it was uninformed, about which electoral outcome would prompt which justices to retire, and with what result. Four Republican presidents named a total of seven of the current justices, while President Clinton named two.

The court will be weighing the competing claims of two presidential candidates, one of whom, Gov. George W. Bush, identified Justices Clarence Thomas (named to the court by his father) and Antonin Scalia as model justices, while the other, Vice President Al Gore, warned that important rights would be endangered by a court transformed by future appointments into the image of those same two justices.

Since complete indifference to such discourse would require a superhuman level of detachment, the risk here is public skepticism about the ability of the justices to approach the case from a position of true neutrality. A decision split along the court's usual ideological fault lines could be questioned by partisan supporters of Vice President Gore, perhaps damaging the court's credibility and doing little to calm the political tempest. A decision reaching across those lines, whichever side wins, would show a court reassuringly above the fray.

The timing of Friday's argument will make it all but impossible to lift the case completely above the partisan fray. The court will be hearing the case five days after George W. Bush's certification as winner and almost certainly during an effort by Vice President Al Gore to contest the results.

But more than the reputation of the current Supreme Court is involved in this case. On a deeper level, at stake is nothing less than the legitimacy of the judicial enterprise itself, and it is here that the greatest risks and rewards for the court lie.

Within minutes after issuing its unanimous decision last Tuesday night that the manual recounts in three Florida counties could continue past a statutory deadline, the Florida Supreme Court became the target of attacks by Governor Bush's allies and eventually by the candidate himself.

The Republicans portrayed the state court, composed of six Democrats and an independent, as a usurper of power properly belonging to the legislative and executive branches of Florida's government, a court in name only, engaged in a fundamentally lawless enterprise of lawmaking.

As the week went on, it became clear that the sustained attacks were not simply the expression of the bitter disappointment of the losing side in a high-stakes lawsuit. Rather, conservative commentators appear determined to turn the Florida court into a symbol of everything wrong with a system in which courts have the last word, as well as a rallying point for curbing judicial power.

For example, in the Dec. 4 issue of the conservative journal The Weekly Standard, printed before the United States Supreme Court accepted the Florida case, William Kristol, the magazine's editor, and Jeffrey Bell write:

"A Bush administration, or a Republican Congressional opposition, could use this moment of judicial usurpation in November 2000 to lay the groundwork finally to mount a serious challenge to the doctrine and practice of judicial supremacy that in the past few decades has done so much damage to our Constitution."

The debate about judicial review — a more neutral term than "judicial supremacy" — is hardly new, dating to the earliest days of the country. Nor is the power of judicial review one that the current Supreme Court is shy about using.

The court has declared two dozen federal statutes unconstitutional in the past six years alone, an unusually high number, with most of these decisions having been written or supported by the court's most conservative members. Across the ideological spectrum, the Supreme Court has a substantial stake in rejecting any suggestion that the power of judges "to say what the law is," in Chief Justice John Marshall's famous phrase, amounts to "usurpation."

The Florida case presents a particular subset of the debate over the judicial role, one with a special resonance for the current court. The question is how courts should approach the interpretation of statutes, and how to characterize what a court does when it performs this common task.

More than half the Supreme Court's docket consists of statutory cases, in which the justices' job is not to declaim on the deeper meaning of the Constitution but simply to figure out what Congress meant when it passed a law that as often as not is riddled with internal contradictions and linguistic ambiguities.

How to accomplish this is the subject of lively dispute. Justice Scalia is the leader of the school that argues for interpreting statutes according to their literal text and plain meaning, disdaining legislative history as a tool, although even he has occasionally expressed the need to take a step back from the actual text and try to make sense of the statute as a whole. However individual justices approach the task, there is no dispute on the court that construing statutes is an essential part of the judicial function.

In the Florida case, the state court said it would forgo "hypertechnical reliance upon statutory provisions" in order to give effect to "the will of the people," as expressed in the state's election law as a whole, that as many votes as possible be counted.

Was this an illegitimate exercise in making "new law," or a perfectly routine example of a court trying to extract coherence from a confusing and contradictory set of statutory provisions? The Republicans have to insist that it was the former, because the core of their appeal is that the State Supreme Court ruling changed state law. Any Gore electors who might be appointed as a result of the relaxed vote-counting deadline, they argue, would be stripped of the legitimacy promised by a federal election law, Section 5 of Title 3 of the United States Code.

That section provides a safe harbor against challenge on the floor of the House of Representatives for electors chosen according to procedures set out in state laws previously "enacted." The Republicans are arguing that because of the Florida Supreme Court's interpretation, the law "enacted" by the Florida Legislature was no longer the law in effect when it came time to resolve the electoral dispute. In effect, the court wrote a new law, the Bush legal team maintains.

This view of what judges do when they interpret statutes may prove a hard sell even for Justice Scalia, who wrote in a concurring opinion in a 1991 case, James Beam Distilling Company v. Georgia: "I am not so naïve (nor do I think our forebears were) as to be unaware that judges in a real sense `make' law. But they make it as judges make it, which is to say as though they were `finding' it — discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be."

The question, said Prof. William D. Popkin, a specialist in legislation at Indiana University Law School, is "whether ordinary statutory interpretation can conceivably be called an arrogation of legislative power." A Supreme Court opinion accepting the Republicans' characterization of what happened in Florida "would call all statutory interpretation into question as a violation of separation of powers," Professor Popkin said in an interview.

The implications of the Bush appeal for the essential meaning of the judicial function add still another dimension to this historic Supreme Court case. In judging the Florida election dispute, the justices inevitably will be judging themselves.

Copyright 2000 The New York Times Company