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Bush's Case Is a Real Test for Scalia's Philosophy

November 27, 2000|RICHARD L. HASEN | Richard L. Hasen, a professor at Loyola Law School, specializes in election law. He consulted with the Gore campaign on the manual recount issue in Miami-Dade County

If George W. Bush becomes president, he has pledged to appoint judges like U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas to the federal courts. During the campaign, much was made of these justices' "strict constructionist" theories of constitutional interpretation, particularly in connection to the abortion question. But we should turn our attention to these justices' theories of statutory interpretation, now that the U.S. Supreme Court has agreed to hear Bush's argument that the Florida Supreme Court decision allowing manual recounts violates an 1887 federal statute.

According to that federal statute, Title 3 of United States Code, Section 5: "If any State shall have provided, by laws enacted prior to the day fixed for the appointment of electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures," and the determination is made at least six days before the meeting of the electors and "made pursuant to such law so existing on said day," the state's determination is conclusive and governs the counting of the electoral votes from that state.

In his brief, Bush urged the U.S. Supreme Court to take the case and hold that the Florida Supreme Court's decision violated the federal statute by creating a new law "not existing prior to the day fixed for the appointment of electors."

Bush argues that the Florida court created new law in ordering Florida Secretary of State Katherine Harris to certify results at a later date than provided under a Florida statute and to include the results of manual recounts.

In support of this argument, Bush's brief cited the legislative history of the statute, particularly the statements made on the U.S. House floor in 1886 by William Craig Cooper, an Ohio representative. Cooper stated that "these contests, these disputes between rival electors, between persons claiming to have been appointed electors, should be settled under a law made prior to the day when such contests are to be decided." But the legislative history is not that clear. During the same discussion, Cooper expressed his concern that without this federal law, the state Legislature might change the rules of the game after election day (something the Florida Legislature is now considering). "How could any court, how could any tribunal intelligently solve the claims of parties under a law which is made concurrent, to the very moment perhaps, with the trouble which they are to settle under the law?"

The statement probably indicates Cooper expected courts or other tribunals to solve the claims of parties under the law existing on election day. Arguably that's just what the Florida Supreme Court did.

This brief analysis shows that reading legislative history is sometimes tricky business, not necessarily expressing the intent of Congress. Perhaps the most we can make of Cooper's statements is that they represented his own views. Then again, perhaps they did not. Perhaps he made these statements in order to attract more votes to his position.

Justice Scalia has been the leading critic of using legislative history to figure out the meaning of a statute. Instead, Scalia begins with the text of the statute and considers its plain meaning at the time the statute was adopted, read in connection with other contemporaneous statutes. To Scalia, the question will not be what Cooper thought, but what a reasonable person reading these words in 1887 would have thought the statute meant.

Under this test, Bush has a difficult argument to make that the Florida decision violates the federal statute. First, as Al Gore's brief pointed out in its opposition to Bush's petition, the statute itself provides that in cases of any controversy or contest, "a judicial determination" of the election winner must be made under law existing on election day. The Florida Supreme Court interpreted Florida statutes as containing some gaps and contradictions, and it used its own preexisting rules of statutory interpretation to fill in the holes and resolve those contradictions.

Second, and perhaps more important, a textualist like Scalia would ask whether the Florida Supreme Court decision created a new law, as opposed to a law "enacted prior to the day fixed for the appointment of electors." In 1887, the common view of the role of the courts was that the courts "discovered" the law, rather than "interpreted" it or "legislated." Thus, those members of the 49th Congress who passed the federal statute would consider a court decision interpreting state law provisions for the appointment of electors not a new law. The Florida court, under this view, merely stated the law as it always existed, now correctly explained.

Of course, the idea that judges discover the law has been rightly criticized in more recent years. But that's not the point. Rather, a textualist reading asks what the words meant in 1887 and applies that reading. To anyone who follows such a textualist reading, the case may turn on what the word "law" meant in the late 19th century.

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