The right to an abortion is a federal constitutional right in the aftermath of Griswold and Roe -- I don't think that the dissents in the partial birth abortion case argued that there was or was not a "federal question" to decide in light of Roe v. Wade and the right to privacy which now exists in constitutional jurisprudence. The partial birth abortion decision turned whether it was permissible under Roe v. Wade to regulate certain techniques used for late-term abortions by medical practitioners in the exercise of their professional judgment. The majority said it was impermissible under Roe to ban one technique where a doctor determines that it is necessary to use that technique to protect the health of the mother. The absence of a qualifier for the life and health of the mother was the fatal flaw in the partial birth abortion laws that were struck down (as well it should have been). The minority disagreed that it was constitutionally impermissible to legislate on this narrow issue. Their view had ABSOLUTELY NOTHING to do with respecting the decision of a state supreme court on an interpretation of state law.
As you are no doubt aware, SCOTUS invokes the constitution (and other legal principles) to invalidate state legislation fairly regularly. What was unusual about the decision in Bush v. Gore was that they chose to substitute their judgment for that of a state supreme court regarding an interpretation of state law (the concurrence more so than the Per Curium majority opinion, which tried -- unsuccessfully -- to sidestep the issue altogether). The majority could find only 3 cases in all of U.S. jurisprudence in support of the proposition that the supreme Court should substitute its interpretation of state law for that of the highest court of the state in question, 2 of those cases being Jim Crow-era 14th amendment cases where the SCOTUS was severely rebuking Southern high courts for interpreting state laws in a manner that sanctioned blatant violations of the most basic civil rights protected by the constitution (during the height of segregation in the mid-50's). By contrast, this was a state court interpreting a statute regarding how state-wide elections are administered -- hardly involving any core constitutional issues, and certainly NOT in the context presented. The fact that this was a presidential election did not raise such issues -- and in fact, the resolution of such issues is clearly delegated to the Congress, and not the Supreme Court, in presidential elections. Incidentally, there were literally hundreds of cases going the other way (i.e., cases where SCOTUS deferred, as federal courts should do except under extremely rare circumstances presenting core constitutional issues, to a state court's interpretation of a state law) to which the majority paid lip service while ignoring what they stood for.
You really owe it to yourself (and your sense of intellectual honesty) to read the dissenting opinions in Bush v. Gore (especially Souter and Breyer) on the federalism issues -- they reflect in the clearest possible terms the political impetus behind the majority opinion, and the degree to which it tramples on long held (conservative) principles of not exercising federal jurisdiction to second guess a state court on issues of state law. I am not saying you should embrace a different outcome (you have to call it as you see it) -- I personally think there were some valid concerns raised regarding the differing standards being used in Broward as opposed to Palm, for example, but they were concerns that were clearly resolvable, in more than ample time to conclude the counts and ensure public confidence that the right person was declared the winner (a point with which Souter and Breyer were both in agreement). The problem was the intellectually dishonest manner in which the majority found a federal issue, substituted its judgement for that of a state supreme court on the flimsiest of grounds, and put the dispute to death based on an artificial deadline. On those issues, the dissents make mincemeat of the majority and concurring opinions. |
