Usurpation by the Florida Supreme Court

Clinton saw the law was lax
And gave the truth forty whacks.
Al Gore saw what he had done
And gave the country forty-one.

With due apologies to Lizzie Borden.

Somehow the word “supreme” hardly seems like an sufficient superlative or adequate description in reference to the Florida Supreme Court. Perhaps the terms “penultimate,” “paramount,” or “preeminent” more aptly apply to the Court’s opinion of itself.Many times when a Court acts to reverse a decision, it is only the decision of a single other branch of government it overrules. In a single action this week, the Florida Supreme Court overruled all three branches of government. It overruled the executive branch, when it precluded the Florida Secretary of State Katherine Harris from exercising her authority under Florida statute to certify the Florida elections. It overruled the legislative branch when the Court thought that a single week allowed under law to certify an election was not sufficient. To complete the “trifecta with a capital-T” [1], the Florida Supreme Court overruled the trial court that decided that Harris had acted within the discretion granted her by statute. Indeed, the trial judge pleaded that, “…I cannot enjoin the Secretary to make a particular decision, nor can I rewrite the Statute which, by its plain meaning, mandates the filing of returns by the Canvassing Boards by 5:00 p.m. on November 14, 2000.” The Florida Supreme Court had no such qualms.

The Florida Supreme Court did not act slowly or reluctantly, exhibiting proper judicial temperament. Rather it acted enthusiastically and aggressively. The attorneys for Al Gore had read Florida election law and even they did not have the audacity to ask the Florida Supreme Court to enjoin Katherine Harris from certifying the elections. The Florida Supreme Court volunteered to do this on its own. Indeed, there are press reports that the Court took one hour to come its decision after the oral arguments. This would only be possible if the judges had made up their minds before there were presented with any oral arguments.

The Court’s action was based on the assertion that Florida election law is self-contradictory. On one hand, the law specifically directs that the Secretary of State “shall” certify the election one week after the election. On the other hand, the law has provisions under which there can be recounts that may extend beyond specifically expressed certification date. With this claim of internal contradiction as a device, the Court took it upon itself to alter the certification dead line to November 26.

Of course, there really is no contradiction. Once the election is certified, the election can be “contested.” The Florida statute allows additional recounts in the context of a contest after certification. Questions about recounting and about “dimpled” chads can be resolved in such a contest. The Florida Supreme Court even commented in its decision that the “will of the people” is paramount and cited Boardman v. Esteva (Florida, 1975). However, that was a case of evaluating an election after it had been certified, in other words a “contest.” It is the Supreme Court’s decision not the Florida election statute that is internally inconsistent.

While it is true that the Florida Supreme Court is populated with Democrats, a couple of whom are avid Al Gore supporters, that is not the problem with this Court. This particular Court is just an example of why judges should be confined to interpreting the law rather than creating it. This Court argues that it is balancing various factors: allowing as many people to have their votes counted as possible, allowing enough time after certification for contesting the election, and still having a slate of electors selected by the time they are needed to vote in the Electoral College. There are valid arguments for altering this balance in time. However, that is properly a legislative function and the time constraints have already been decided. The Florida legislature decided to allow a week for certification and about a month for contests.

The Florida Supreme Court is not ignorant of this distinction. Indeed, it was brought up in oral arguments. However, the Court chose to ignore it because to grant the validity of this distinction would have rendered the Florida election law internally consistent and would have robbed the Court of the opportunity to substitute its own best judgment for that of the legislature’s.

It is more than ironic that a Court that proclaims that it is vitally concerned with “will of the people,” finds no problem with an unelected courts cavalierly thwarting the will of the people as expressed by their elected legislature and elected executive.

The Florida Supreme Court’s action thus eloquently makes the argument why the country would be better off with a Bush presidency. A Bush Administration would be more likely to select judges capable of behaving with judicial restraint as opposed to those enamored with judicial arrogance.

[1] This is a term borrowed from Dick Vitale, a television college basketball announcer notorious for his glib superlatives.

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