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Jewish World Review Dec. 12, 2000 / 15 Kislev, 5761

Michael Barone

Michael Barone
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Consumer Reports

Red Queen rules

With judicial activists, it's the results that matter most --
IN THE Florida Supreme Court's two decisions in the presidential election, the American public can see the ugly face of judicial activism. Rules are ignored, deadlines are changed, and entirely new laws are written out of thin air. It is the world of Alice's Red Queen: My will be done. To an extent that the public probably doesn't understand, judicial activism is an important force in government, preserved from inspection by the arcana of legal language and by the reverence with which elites treat the judgments of courts. But here it is now in Florida, out in the open, for all to see.

The Florida Supreme Court has long been one of the nation's leading judicial activist courts. It has ruled invalid a law limiting death penalty appeals because it reduced the power of judges. It struck down a death penalty constitutional amendment approved by 73 percent of the voters because the ballot language was supposedly confusing. It barred from the ballot an initiative banning racial quotas and preferences because it was supposedly unclear. This is a results-oriented court, well practiced in the art of manipulating words to get its own way.

Judicial activists often start off by identifying attractive victims and enunciating attractive principles. The victims in the Florida court's two cases were people whose votes were supposedly not counted. Then judicial activists appeal to general principle, often a vague statement from a state constitution. The Florida court's first, unanimous, decision in these cases cited language from the Florida Constitution about the importance of the right to vote. The court noted that the statute passed by the Legislature gave Secretary of State Katherine Harris discretion to decide whether to accept hand counts after the November 14 deadline. Harris set out her grounds for exercising that discretion, but the court's opinion ignored her explanation and gave no reasons for saying she abused her discretion. Instead, it waved the magic wand of the Florida Constitution and said that she was required to accept the counts.

Vague language. Usually, the invoking of a state constitutional provision by judicial activists insulates them from U.S. Supreme Court review. It is hornbook law that state supreme courts are the final interpreters of state law. But, in fact, judicial activists rely on vague language to produce concrete results the drafters of the original language never contemplated. In New Hampshire, for example, judicial activists read a clause in the state Constitution promising an "adequate education" as requiring equal spending in every city and town, and overturned the state system of education financing that had produced some of the highest test scores in the nation. In Vermont, judicial activists took language saying government is "instituted for the common benefit, protection, and security of the people, nation, or community," and decided that it required the legislature to pass a law establishing gay marriage or providing gay couples the same treatment as married couples in state law.

But the Florida court was unable to use the state Constitution to rewrite its statutes here. As Justice Antonin Scalia pointed out, the U.S. Constitution gives the legislature final say over how presidential electors are selected. In its decision vacating and remanding the decision of the Florida court, the U.S. Supreme Court tartly noted that the Florida court may have construed the statute without regard to this federal constitutional clause; the justices requested clarification. Astonishingly, the 4-3 Florida court opinion issued late Friday afternoon does not appear to provide the clarification the U.S. Supreme Court demanded.

Instead, the Florida court, this time by the narrowest of margins, pushes aside old rules, sets up new procedures, and further changes Florida law. The majority's decision, as Chief Justice Charles Wells wrote in dissent, "has no foundation in the law of Florida as it existed on Nov. 7, 2000, or at any time until the issuance of this opinion. The majority returns the case to the circuit court for this partial recount of undervotes on the basis of unknown or, at best, ambiguous standards with authority to obtain help from others, the credentials, qualifications, and objectivity of whom are totally unknown."

Which leads to the final evil of judicial activism: Very simply, it tends to create chaos. Simple rules and clear deadlines are set aside, in the name of abstract fairness, so that no one can know the rules and no deadline counts. The result is the travesty of the hand count in Broward County, where hundreds of dimpled chads were counted as votes–which has never before happened in Florida or indeed anywhere but in 14 counties in Texas and one case in Massachusetts. Some Miami-Dade ballots were hand counted in Miami one week under one standard, and others are to be hand counted in Tallahassee by–what standard? Florida law has been rewritten and rewritten again–with the only guiding principle being the changes that all seem to help one candidate. The Red Queen rules–unless the U.S. Supreme Court steps in again and finally ends the madness.

JWR contributor Michael Barone is a columnist at U.S. News & World Report and the author of the biennialAlmanac of American Politics. Send your comments to him by clicking here.


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11/14/00: How Bush can lead
10/31/00: Puzzled by the state poll results? So are the candidates
10/18/00: When talk is cheap
10/03/00: The death of Big Media
09/09/00: A fair question
08/28/00: Making labor's day
07/11/00: The new Mexico: The 20-year history behind an overnight change
07/06/00: A textbook campaign: Bush makes hay before the convention lights shine
06/23/00: Beat the press
06/06/00: Reining in regulators: Will the Supreme Court clip Washington's wings?
05/25/00: In plain English: Bilingual education flunks out of schools in California
04/28/00: Gore in the balance: His book reveals a fanatical approach to the environment
04/04/00: President-elect Putin offers a basis for hopes–and for fears
03/14/00: Over the long, long haul, the issues may yet favor the Republicans
03/02/00: Will unions rule? Indispensable to Gore, labor may be the campaign's secret winner
02/15/00: A reformers' party
01/03/00: The voters rule: In Manchester, Mexico, and Moscow, an imperfect system works
01/19/00: The era of Big Promises
12/08/99: Welcome to the world of 'good enough'
11/2/99: Just saying no
11/12/99: Money talks, as it should
10/28/99: Mexico votes – for real
10/03/99: Going against type
09/28/99: The unions go public
08/31/99: China's strait flush
08/25/99: The first two contests
08/03/99: Paddling upstream
07/08/99: Taking Hillary seriously
06/22/99: Trying the lawyers
06/07/99: Facts on the ground

©2000, Michael Barone