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Supreme Court Politics

December 1, 2000 at 12:00 AM EDT


MARGARET WARNER: To help us analyze all this, we furnish to three legal scholars. John Yoo is a professor at Boalt Hall Law School at the University of California, Berkeley. He’s a former clerk for Supreme Court Justice Clarence Thomas; Chris Schroeder, a professor at Duke University Law School. He’s former head of the office of legal counsel in the Clinton administration; and Cass Sunstein, a Professor of Law in Political Science, at the University of Chicago.

Welcome gentlemen. John Yoo, I’ll begin with you. What did you find most telling in the way the Justices zeroed in on the arguments today?

JOHN YOO: What I was really impressed with was the idea that many of the Justices were concerned about whether this was really a case in which the court could grant a remedy to the parties. If you looked at the oral argument, a lot of the questions to Mr. Olson involved whether this statute was a safe harbor, whether it was a promise by Congress to the states, whether they would treat the electoral votes as valid if they kept to their rules. And if that’s the case, according to several of the Justices, it doesn’t seem like this is a statute that the court can remedy. And you’ll also notice that Mr. Tribe did not get a lot of questions about that position which they pressed very hard in their brief. So this issue about justiciability and whether there is a remedy came out strongly in a way perhaps that wasn’t apparent when the court first granted review in this case.

MARGARET WARNER: Professor Schroeder, what struck you in this case today?

CHRIS SCHROEDER: I was struck how quickly the Justices honed in on what I think are the hardest part of the arguments for both sides. In your piece with Jan Greenburg she mentioned Justice Scalia’s questioning with respect to whether the state court hadn’t relied upon its own state constitution to alter the election laws in Florida. And if that’s the case, it does raise difficulties for the Gore argument because Article II of the Constitution vests that power in the legislature.

MARGARET WARNER: So in other words, let me interrupt you. You agree with Jan that really the toughest time that the Gore position had was on this question of whether it violated the Constitution — what the Florida Supreme Court did – rather than whether it violated the federal statute?

CHRIS SCHROEDER: Well that’s right. I think one thing that we’ve seen here as a result of very expedited pleadings is that both sides’ positions have been evolving sort of on the run. And the Governor’s position on Section 5, I think, has shifted. And if Section 5 is simply a safe harbor….

MARGARET WARNER: Meaning… Just explain safe harbor. It’s telling the states if you do this, we promise not to make a mess of it or not to challenge you in the house. But it doesn’t require them do that, is that what you mean?

CHRIS SCHROEDER: That’s exactly right. The provision was written after the Hayes-Tilden election which we have with’ heard so much about. It is intended to resolve what became the nub of the dispute back in that case, which is when there were conflicting sets of electoral votes sent to Washington, we had no procedures in place to resolve the conflict. So this provision says in effect, more importantly I think to Congress than to the states, if we get a set of electoral votes that have been determined through a process that complies with Section 5, we’re telling you we’ll take those to be conclusive and be the votes of the state.

MARGARET WARNER: All right. Professor Sunstein, what struck you most today? Then we’ll get back to the individual issues.

CASS SUNSTEIN: Well, what surprised me really is that the Justices usually don’t tip their hands and give much of a sense of what they’re thinking. I think in this case we got a clearer sense of what they’re worried about. For example, four Justices seemed pretty clearly not to like Governor Bush’s position. They may be fooling us….

MARGARET WARNER: Which four of those?

CASS SUNSTEIN: Souter, Stephens, Breyer, and Ginsburg all showed no enthusiasm for Bush’s position and fair enthusiasm for Gore. It doesn’t mean they hope he will be president, they just don’t like Bush’s legal position, it appears. That is unusual. Chief Justice Rehnquist and Justice Scalia, I believe showed considerable enthusiasm for Governor Bush’s second argument, that is on the constitutional level. That was new. I think they tipped their hand as to what is worrying them at least. With respect to the other three, we don’t know much. Justice Thomas was silent and the other two swing Justices, Kennedy and O’Connor asked questions of both sides. What I got out of this, we may be surprised, but that the Justices have a clearer inclination and are willing to give a sense of it that often is the case.

MARGARET WARNER: All right. John Yoo, address that question, one: How much usually can we read into questions? How much did you read into the questions today? And do you think you can almost see fault lines?

JOHN YOO: Sure the interesting thing about the way the court makes decisions is that they usually don’t come together as a group of four before oral arguments to make the case.

They usually come together after the oral argument to give their vote in conference. So one thing oral argument is or represents is a way for them to discuss the case amongst themselves using the lawyers as sounding boards not just for their own questions and concerns, but also for them to make points with one another. That’s the way I think you look at oral argument.

That’s how come – I think Professor Sunstein is quite right – you can see them tipping their hands, and that’s because they’re trying to make points with each other, almost arguing with each other and using the lawyers as a tool to achieve that end. So if you can see some fault lines, I actually thought there was a fair amount of consensus on the court about the fact that this case may not be one that they should have granted or maybe should not be one in which they can give review… give remedy to the parties. I do think, and I agree with the other two professors, is that it seems there is a split as to the statutory interpretation question; whether that violated federal law and the Constitution — in the sense that the Florida Supreme Court has stretched Florida election laws so far that it went from interpreting to actually law making.

MARGARET WARNER: Professor Schroeder, pick up on that point about whether… We didn’t run an excerpt on this, but Justice Souter really zeroed in on – does the U.S. Supreme Court have a role here, or did – the federal statute actually set it up so that if the states can’t resolve it, it goes to House of Representatives, it goes to Congress? How did you read that?

CHRIS SCHROEDER: That’s exactly right. If you look at the act as I think you ought to in terms of the understanding of the Congress that enacted it, it is a set of rules of procedure for the Congress. The most elaborate section is Section 15, which is a very detailed road map for how the Congress meeting in joint session in January is supposed to resolve disputes over electors. So I think what Justice Souter was suggesting and others as well was that to the extent there is a dispute over whether the procedures in Florida complied with the safe harbor provision, that’s an issue for the Congress on January 5. They can take that up and it’s not the job of this court to intervene in that assessment at this time.

MARGARET WARNER: Professor Sunstein, how did you read that?

CASS SUNSTEIN: I think what’s been said is absolutely right. The argument by the Gore team is that this provision requiring the prior law to stick means that if the prior law sticks, then Congress can’t question it.

MARGARET WARNER: Can or cannot?

CASS SUNSTEIN: Cannot. That is if Florida follows the law that was in place before the election, it’s conclusive. That’s how the law reads. Now that doesn’t mean that if Florida changes the law, something terrible happens or Florida’s judges have to be punished. It just means that Congress can reevaluate the outcome in Florida. It is actually a simple crucial point, which I think Professor Yoo is right that the Justices seem to agree on maybe tentatively, which is that this provision, the key provision, doesn’t invalidate what the Florida court did. It just means Congress isn’t stuck with the outcome produced by Florida if it doesn’t adhere to the law as it existed before the election.

CHRIS SCHROEDER: Margaret could I please emphasize one point that Professor Sunstein made?


CHRIS SCHROEDER: Really the importance of the safe harbor provision comes into play if two sets of electoral votes get up to Washington. This litigation will have… Will be of no interest to either of the parties if the status quo remains in place, which is Governor Jeb Bush has certified a slate of Bush electors and sent that certificate to the national archivists. If the situation on the ground in Florida remains the same, that’s the only set of electoral votes that will be in Washington and it won’t matter whether they get the benefit of the safe harbor or not.

MARGARET WARNER: Professor Yoo, how did you interpret the exchange about possible remedies and the one we played with Justice Breyer weighing in on, you know, kind of what are we doing here? Or do we have a role that will really make a difference?

JOHN YOO: The court is really worried about mootness, or what we call mootness or ripeness, whether its decision makes any difference at all. Now the events have moved beyond the original recount question and to the contest provisions of Florida law which may in themselves judge for an independent recount, it may be the case that several of the Justices are worried that they anything they do in this case, even if they find for Bush or they find for Gore, it won’t make any difference because it won’t change things all that much. The focus of the process has now moved beyond where the case was originally. That said, what the court does hear could change the difference in the margin of the votes between Bush and Gore. So it is hard for me to think that it’s technically under the law not yet ripe or the case is moot but it’s almost more a political consideration.

Politically, I think the court took the case thinking they might have a broader role to play in settling and calming the waters in Florida and within the legal and political systems in Florida and in the federal government, but it seems events have accelerated so quickly beyond them that they may be worried that they may not have… they should not have acted so quickly in this case.

MARGARET WARNER: Professor Sunstein, one, do you agree with that sort of speculation or interpretation, and how do you think it might affect the way they ultimately, when they sit down and try to come up with a decision or minority/majority viewpoint?

CASS SUNSTEIN: Well, Justice Breyer is leader type. He wrote his undergraduate thesis on pragmatism. He cares a lot about the consequences of law. He wants to know what will matter. And the court may coalesce around the position that what they do won’t matter a lot. Now, they added a third question to the two questions raised by the Bush team. And that is what is the consequences of the court’s ruling if it agrees with Bush? Breyer was right on that point. I think Professor Yoo is right that they might try to avoid the harder, technical issues and say whatever they do may won’t matter a lot. But it is also the case that something is going to matter because the counting of the manual votes at least counted a few hundred in that weren’t in earlier.

MARGARET WARNER: I want to ask you all three to comment quickly on this final point which has been a lot of commentary not just the candidates but the court has a lot at stake here. The New York Times said here if they break along partisan lines, it could undermine their image of integrity. Starting with you, Professor Sunstein, do you think the court is mindful of that and will affect the way they rule?

CASS SUNSTEIN: Yes. I think the court cares a lot about its own legitimacy. It man terrific for the court and the nation that there has been bipartisan trust in the Justices and I think the court will rule responsibly in a way that vindicates that trust.

MARGARET WARNER: Okay. Professor Schroeder, on that point?

CHRIS SCHROEDER: Well, I agree with Professor Sunstein. I think this court is very much aware of its institutional credibility. I did not get the sense from arguments, and it is always dangerous to extrapolate, that this court is at this time tending to coalesce around a single position. I think it’s at this point as likely we’ll get an opinion with a dissent. But even then I think we’re unlikely to see the kind of division that would lead commentators to conclude this was just raw partisan politics at work, because I think the outcome of this case ultimately is not going to be dispositive in the contest of Florida.

MARGARET WARNER: All right. And Professor Yoo, how do you think this issue will play into what they do?

JOHN YOO: I think the legal issue is not that important in the long run but the attention and focus of the court as a political matter I think will create strong forces in the court to get unanimity or something close to that. So where they may not coalesce around the point, I think, to use Professor Sunstein’s word, they may want to take the easy way out and just hold that they should not decide the case and grant a remedy to either party.

MARGARET WARNER: All right. Professors three, thank you all three very much.