21 November 2000


Florida's Kangaroo Kourt

Yesterday, I wrote about what might happen if the FL Supreme Court overreached in its decision.  Today, the FL Supreme Court overreached, assuming both legislative and executive powers in an incredibly brazen act of judicial fiat.  Unlike most of the idiots who are discussing this case, I actually took apart the opinion tonight (which is rife with spelling errors and is quite poorly written, to be honest -- rather an embarrassment for such an important opinion) and I have to say that it is the worse case of judicial activism I have seen since reading Roe v. Wade many years ago.  The judges find ambiguity and conflict in Florida's "statutory scheme" (which violates a longstanding principle of judicial interpretation at both state and federal levels that judges should always attempt to reconcile apparent conflict in statutes before imposing remedies -- although there are no statutes truly in conflict here in my opinion, which is why they must "create" conflict), they wade through all sorts of Solomon-like legalese, they even make reference to the Illinois Supreme Court (!!!), and then they effect a remedy to these difficulties they have created upon their own authority (somehow vaguely rooted in the right to vote), which involves the arbitrary substitution of their own amended certification date for that spelled out by the legislature, and the curtailment of discretion issued by the legislature to the executive branch (specifically the form of the Secretary of State).  It is stunning in its reach and in its intended effect.  I don't know whether to call it partisan -- because it does effect a partisan outcome -- or simply activist; maybe they are one and the same (I visited those issues broadly in the 11 November entry with which some people disagreed for reasons they've still not made clear, and in the 17 November entry).  I do wonder why Katherine Harris is a "Soviet-era Commisar" for enforcing the law, yet nobody is questioning the partisanship (or JUDGMENT!) of these 7 judges despite their activities being the "very definition of tyranny" as spelled out by Publius in Federalist 47!

In any case, I think they have now gone too far, and have given the 11th Circuit a compelling reason to intervene.  I wrote yesterday of the Bush team's inclusion of 3 USC 5 in their briefs and arguments, which is the mechanism (along with the 14th amendment) the Bush team will now use to attempt to overturn the Supreme Court decision in Federal Court.  The second trump card is an eerily similar case decided five years ago, Roe v. State of Alabama, by the same 11th Circuit Court, in which the Court held that Alabama courts unconstitutionally changed the election law after the election, in effect deciding the outcome..  The 11 Circuit assumed jurisdiction in this case solely due to 14th Amendment considerations.  The Federal Courts can assert jurisdiction  on the same grounds as in Roe, but they have the added Federal concern of 3 USC 5 at work now, which makes the FL Supreme Court's decision reviewable at the Federal level, ironically by the same 11th Circuit.  

This Court battle is just shaping up.  And remember over the next few days when you start hearing talk about the Republican legal strategy that the first reference to 3 USC 5 came right here, yesterday.  Wouldn't it be nice if 7 partisan hack judges in the state of Florida paid as much attention to the actual LAW as I do?  

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