Supreme Court Update: It Doesn't Look Good For Gore

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It doesn’t look good for Gore U.S. Supreme Court majority appears to question Florida Supreme Court ruling By Dan Abrams and Pete Williams NBC NEWS

WASHINGTON, Dec. 1 — There were no big surprises in Friday’s U.S. Supreme Court arguments, despite about 115 questions over the 90 minutes, but you could see the divide in the court, through the questions. You can’t necessarily predict what will happen as a result of the questions the justices ask, but you can see what they are concerned about.

GENERALLY, THE QUESTIONS concerned broad constitutional principles — focusing on what a particular statute means and how it should be defined. For example, there’s no question Justice Ruth Bader Ginsburg was concerned about protecting the sanctity of the Florida Supreme Court’s ruling. In essence, she asked, “What are we doing second-guessing the Florida Supreme Court?” On the other hand, you saw Justice Antonin Scalia getting into exactly what the Florida Supreme Court did and said, saying that the Florida Constitution was used as a justification for the state Supreme Court rulings. Why is that a problem? Because Scalia was saying that the vote certification deadline of Nov. 26 the Florida Supreme Court set is something that should be dictated by the Florida Legislature — not using broad constitutional or even Florida constitutional principle to make that sort of decision.

Then in the middle, justices Sandra Day O’Connor and Anthony Kennedy, who are known as the court’s swing votes, focused on whether this is a federal issue — homing in on the issue that could save the day for Gore. If there is no federal issue, the case should be dismissed. All the exchanges were civil. There was no rancorous debate, just tough intellectual probing. The four arguing attorneys faced tough questions but were ready for most of the questions. The justices may be fairly evenly split on whether the Florida Supreme Court did the right thing, but that doesn’t really dictate what they will do in ruling on or dismissing the case. It is always risky to predict the outcome from the questions, but based on the questions asked by the Supreme Court justices during oral arguments, it looks very bad for the Florida Supreme Court. The minority of the group thinks that, in all but the worst cases, a state supreme court ruling should be let alone. The majority feels there is trouble in that Florida Supreme Court ruling. The majority of the court appeared very skeptical of the idea that the Florida court did nothing wrong and violated neither the federal Constitution nor federal law.

There is an outside chance the Supreme Court may, in the end, back out of this and say this is really not for the federal courts to decide — saying this is between the state, its legislature and the Congress over how to count the votes, so there’s no place for the U.S. Supreme Court in the matter. In effect, the court may, on reflection, dismiss the case for lack of a federal question. There is some indication this could be a close decision. The possibility of a unanimous ruling, to do anything but dismiss the case, is very remote. There is also no way to predict when an opinion may come, but many court officials think it could come out as early as next Monday. It Doesn't Look Good For Gore

-- Ain't Gonna Happen (Not Here Not@ever.com), December 01, 2000

Answers

>You can’t necessarily predict what will happen as a result of the questions the justices ask,

... as history has shown ...

>but you can see what they are concerned about.

Not necessarily. You can see what they're asking questions about, but that's not necessarily what they think is most important about the case -- that's just what they want to ask questions about during the oral arguments. Justice Thomas never asks questions at oral arguments, but he writes vigorous opinions, according to what I heard.

>In effect, the court may, on reflection, dismiss the case for lack of a federal question. There is some indication this could be a close decision. The possibility of a unanimous ruling, to do anything but dismiss the case, is very remote.

Something not mentioned in the article is that the Supreme Court is diligent in preserving its reputation of impartiality, and is extremely conscious that this case is historic. It will not want to make a close, 5-4 or maybe even 6-3, decision public, because that would just mirror the other evenly split votes that have characterized this election. It will want to make its public decision by a decisive margin, preferably unanimous, in such an important case. So although secondary decisions in their internal conferences may have split votes, the justices will be eager to find a way to render a unanimous decision if at all possible.

Look for a 9-0 or 7-2 decision either (a) to decline the case on lack of jurisdiction or other narrow point, or (b) to dismiss the case (uphold the Florida Supreme Court).

It looks fine for Gore.

-- No Spam Please (nos_pam_please@hotmail.com), December 01, 2000.


I listened to the proceedings today. Geez...those justices are heartless. First I heard the questions asked of the Republican attorney. After they ripped him a new one, it was the Democratic attorney's turn. I sure didn't see any favoritism, but if the questions asked mean ANYTHING, which I have also heard they don't necessarily, these folks agreed to hear this case for VERY different reasons. Then again, maybe that's ALWAYS the way they do it. I've never heard a Supreme Court case before.

-- Anita (Anita_S3@hotmail.com), December 01, 2000.

If the cases that go up before the SC are so important, and certainly this one is, why do the lawyers only get 90 minutes? Sheesh! And then they only get two words out and one of the Justices starts babbling a new question on a totally different tack. I was not at all impressed and in fact I was a little pissed off at their rudeness. Its not like they had 6 more cases to hear today. I got the impression that the whole thing was one of protecting the court and not settling any dispute for anyone, let alone the country. Like I said, I wasn't impressed with any of them individually or collectively.

-- Taz (Tassie@RuralFlorida.com), December 01, 2000.

Taz,

>If the cases that go up before the SC are so important, and certainly this one is, why do the lawyers only get 90 minutes?

The majority of the time the justices spend on cases is in perusing written documents and discussion among themselves, not listening to oral arguments. The 90 minutes is for only the oral arguments.

Appellate cases like those before the Supreme Court are not run just like the sort of court cases one commonly sees on TV, fictional or otherwise. There's no jury to convince -- the attorneys are talking only to the justices. The evidence has to be presented in advance (remember, all appellate cases have previously been tried in a lower court). In trial cases, the part in open court includes not only the oral arguments but also the presentation of evidence and testimony of sworn witnesses. When a case goes to an appellate or supreme court, the evidence and sworn testimony is already on official court record and that record is presented to the appellate or supreme court.

The oral arguments are limited to 90 minutes because they are only a minor part of the cases, and there are a lot of cases.

>And then they only get two words out and one of the Justices starts babbling a new question on a totally different tack. I was not at all impressed and in fact I was a little pissed off at their rudeness. Its not like they had 6 more cases to hear today.

They are asked to hear thousands and thousands of cases each year. On many days, they do consider 6 or more cases.

>I got the impression that the whole thing was one of protecting the court and not settling any dispute for anyone, let alone the country.

If your impression is based only on hearing the oral argument phase of this one case, then consider the well-known story of the blind men examining an elephant by each feeling only its leg, side, or trunk.

During oral arguments, the justices aren't trying to settle anything, except to ask a few questions. It's just a small part of the overall case. What you don't see or hear is the 99% of the time that the justices spend in research and discussion in private.

-- No Spam Please (nos_pam_please@hotmail.com), December 01, 2000.


Anita,

>Then again, maybe that's ALWAYS the way they do it.

Yes, it is.

I've heard several transcripts of oral arguments read on radio before. (That is, the radio newsperson was reading a transcript of what was said in the hearing, instead of there being an actual audio recording of the justices' and attorneys' own voices as was broadcast today, which is unprecedented. There have been audio tapes of earlier Supremem Court oral arguments released before, but only years after the hearings, never before on the same day they actually took place.) And the conversations were very much like what you heard today -- justices frequently interrupting attorneys, asking all kinds of questions about hypothetical situations, and so forth. Nothing in the nature of today's oral arguments surprised me as being much different from those of the previous cases I've heard.

-- No Spam Please (nos_pam_please@hotmail.com), December 01, 2000.



No spam--

Thanks for the interesting insights. It sounds like you know whereof you speak. Nonetheless, I hope you are wrong in your prediction. Yes, I want Bush to win but evenmore I want this endless election by litigation to be over.

-- Lars (lars@indy.net), December 01, 2000.


Lars,

I'm not sure how being wrong in my prediction would correspond to an end to litigation. :-)

Seriously, if the U.S. Supreme Court were to overturn the Florida Supreme Court decision without a _very_ sound and distinct basis in federal (incl. U.S. Constitution) law, that would raise the prospect of thousands and thousands more state supreme court rulings being appealed to federal court than is now the case.

-- No Spam Please (nos_pam_please@hotmail.com), December 01, 2000.


It's all over for Al Sore and the Loserman. Let it be known here and now, that George W. Bush will be our next President of the United States. Al Sore the Loser, has made a total ass out of himself, and Joe the Puppetman is walking a road to no where. Al Gore is clawing and clubbing every step of the way to nowhere.. G.W. Bush Jr., is mellow and rolling with the flow. Desperate people do desperate things. George Bush will prevail.

One more thing! If your near a city that is planning a protest at 1:00 p.m. Saturday, December 2, I urge you to attend. It will be like nothing you have ever expercienced.

-- Mrs. Cleaver (Mrs. Cleaver@LITBBB.xcom), December 01, 2000.


Mrs. Cleaver,

>Al Gore is clawing and clubbing every step of the way to nowhere.. G.W. Bush Jr., is mellow and rolling with the flow.

Perhaps someone has neglected to inform you that it is _Bush_ who has been clawing and clubbing his way to federal court over the Florida Supreme Court's decision.

-- No Spam Please (nos_pam_please@hotmail.com), December 02, 2000.


Would bet No Spam is right. They're gonna toss this petition and rightly so. It's what I'd want in valuing states rights. What surprises is that they took it in the first place.

It's neat to watch the Supremes get some prime time attention. Doesn't matter that the certification deadline at issue is moot now anyway. Civics lesson for the masses and that can't hurt.

-- Carlos (riffraff@cybertime.net), December 02, 2000.



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