Ginsburg dissent:
JUSTICE GINSBURG, with whom JUSTICE STEVENS joins,
and with whom JUSTICE SOUTER and JUSTICE BREYER join
as to Part I, dissenting.
I
The CHIEF JUSTICE acknowledges that provisions of
Florida' s Election Code "may well admit of more than one
interpretation." Ante, at 3. But instead of respecting the
state high court' s province to say what the State' s Election
Code means, THE CHIEF JUSTICE maintains that Florida' s
Supreme Court has veered so far from the ordinary prac-tice
of judicial review that what it did cannot properly be
called judging. My colleagues have offered a reasonable
construction of Florida' s law. Their construction coincides
with the view of one of Florida' s seven Supreme Court
justices. Gore v. Harris, __ So. 2d __, __ (Fla. 2000) (slip
op., at 45–55) (Wells, C. J., dissenting); Palm Beach
County Canvassing Bd. v. Harris, __ So. 2d __, __ (Fla.
2000) (slip op., at 34) (on remand) (confirming, 6–1, the
construction of Florida law advanced in Gore). I might
join THE CHIEF JUSTICE were it my commission to inter-pret
Florida law. But disagreement with the Florida
court' s interpretation of its own State' s law does not war-rant
the conclusion that the justices of that court have
legislated. There is no cause here to believe that the
2 BUSH v. GORE
GINSBURG, J., dissenting
members of Florida' s high court have done less than "their
mortal best to discharge their oath of office," Sumner v.
Mata, 449 U. S. 539, 549 (1981), and no cause to upset
their reasoned interpretation of Florida law.
This Court more than occasionally affirms statutory,
and even constitutional, interpretations with which it
disagrees. For example, when reviewing challenges to
administrative agencies' interpretations of laws they
implement, we defer to the agencies unless their interpre-tation
violates "the unambiguously expressed intent of
Congress." Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837, 843 (1984). We do so
in the face of the declaration in Article I of the United
States Constitution that "All legislative Powers herein
granted shall be vested in a Congress of the United
States." Surely the Constitution does not call upon us to
pay more respect to a federal administrative agency' s
construction of federal law than to a state high court' s
interpretation of its own state' s law. And not uncom-monly,
we let stand state-court interpretations of federal
law with which we might disagree. Notably, in the habeas
context, the Court adheres to the view that "there is ‘ no
intrinsic reason why the fact that a man is a federal judge
should make him more competent, or conscientious, or
learned with respect to [federal law] than his neighbor in
the state courthouse.' " Stone v. Powell, 428 U. S. 465,
494, n. 35 (1976) (quoting Bator, Finality in Criminal Law
and Federal Habeas Corpus For State Prisoners, 76 Harv.
L. Rev. 441, 509 (1963)); see O' Dell v. Netherland, 521
U. S. 151, 156 (1997) ("[T]he Teague doctrine validates
reasonable, good-faith interpretations of existing prece-dents
made by state courts even though they are shown to
be contrary to later decisions.") (citing Butler v. McKellar,
494 U. S. 407, 414 (1990)); O' Connor, Trends in the Rela-tionship
Between the Federal and State Courts from the
Perspective of a State Court Judge, 22 Wm. & Mary
Cite as: 531 U. S. ____ (2000) 3
GINSBURG, J., dissenting
L. Rev. 801, 813 (1981) ("There is no reason to assume
that state court judges cannot and will not provide a
‘ hospitable forum' in litigating federal constitutional
questions.").
No doubt there are cases in which the proper application
of federal law may hinge on interpretations of state law.
Unavoidably, this Court must sometimes examine state
law in order to protect federal rights. But we have dealt
with such cases ever mindful of the full measure of respect
we owe to interpretations of state law by a State' s highest
court. In the Contract Clause case, General Motors Corp.
v. Romein, 503 U. S. 181 (1992), for example, we said that
although "ultimately we are bound to decide for ourselves
whether a contract was made," the Court "accord[s] re-spectful
consideration and great weight to the views of the
State' s highest court." Id., at 187 (citation omitted). And
in Central Union Telephone Co. v. Edwardsville, 269 U. S.
190 (1925), we upheld the Illinois Supreme Court' s inter-pretation
of a state waiver rule, even though that inter-pretation
resulted in the forfeiture of federal constitu-tional
rights. Refusing to supplant Illinois law with a
federal definition of waiver, we explained that the state
court' s declaration "should bind us unless so unfair or
unreasonable in its application to those asserting a federal
right as to obstruct it." Id., at 195. 1
——————
1 See also Lucas v. South Carolina Coastal Council, 505 U. S. 1003,
1032, n. 18 (1992) (South Carolina could defend a regulatory taking "if
an objectively reasonable application of relevant precedents [by its
courts] would exclude . . . beneficial uses in the circumstances in which
the land is presently found"); Bishop v. Wood, 426 U. S. 341, 344–345
(1976) (deciding whether North Carolina had created a property inter-est
cognizable under the Due Process Clause by reference to state law
as interpreted by the North Carolina Supreme Court). Similarly, in
Gurley v. Rhoden, 421 U. S. 200 (1975), a gasoline retailer claimed that
due process entitled him to deduct a state gasoline excise tax in com-puting
the amount of his sales subject to a state sales tax, on the
4 BUSH v. GORE
GINSBURG, J., dissenting
In deferring to state courts on matters of state law, we
appropriately recognize that this Court acts as an " ‘ out-side[
r]' lacking the common exposure to local law which
comes from sitting in the jurisdiction." Lehman Brothers
v. Schein, 416 U. S. 386, 391 (1974). That recognition has
sometimes prompted us to resolve doubts about the
meaning of state law by certifying issues to a State' s high-est
court, even when federal rights are at stake. Cf. Ari-zonans
for Official English v. Arizona, 520 U. S. 43, 79
(1997) ("Warnings against premature adjudication of consti-tutional
questions bear heightened attention when a federal
court is asked to invalidate a State' s law, for the federal
tribunal risks friction-generating error when it endeavors to
construe a novel state Act not yet reviewed by the State' s
highest court."). Notwithstanding our authority to decide
issues of state law underlying federal claims, we have used
the certification devise to afford state high courts an oppor-tunity
to inform us on matters of their own State' s law
because such restraint "helps build a cooperative judicial
federalism." Lehman Brothers, 416 U. S., at 391.
Just last Term, in Fiore v. White, 528 U. S. 23 (1999), we
took advantage of Pennsylvania' s certification procedure.
In that case, a state prisoner brought a federal habeas
action claiming that the State had failed to prove an es-sential
element of his charged offense in violation of the
Due Process Clause. Id., at 25–26. Instead of resolving
the state-law question on which the federal claim de-——————
grounds that the legal incidence of the excise tax fell on his customers
and that he acted merely as a collector of the tax. The Mississippi
Supreme Court held that the legal incidence of the excise tax fell on
petitioner. Observing that "a State' s highest court is the final judicial
arbiter of the meaning of state statutes," we said that "[w]hen a state
court has made its own definitive determination as to the operating
incidence, . . . [w]e give this finding great weight in determining the
natural effect of a statute, and if it is consistent with the statute' s
reasonable interpretation it will be deemed conclusive." Id., at 208.
Cite as: 531 U. S. ____ (2000) 5
GINSBURG, J., dissenting
pended, we certified the question to the Pennsylvania
Supreme Court for that court to "help determine the
proper state-law predicate for our determination of the
federal constitutional questions raised." Id., at 29; id., at
28 (asking the Pennsylvania Supreme Court whether its
recent interpretation of the statute under which Fiore was
convicted "was always the statute' s meaning, even at the
time of Fiore' s trial"). THE CHIEF JUSTICE' s willingness to
reverse the Florida Supreme Court' s interpretation of Flor-ida
law in this case is at least in tension with our reluctance
in Fiore even to interpret Pennsylvania law before seeking
instruction from the Pennsylvania Supreme Court. I would
have thought the "cautious approach" we counsel when
federal courts address matters of state law, Arizonans, 520
U. S., at 77, and our commitment to "build[ing] cooperative
judicial federalism," Lehman Brothers, 416 U. S., at 391,
demanded greater restraint.
Rarely has this Court rejected outright an interpreta-tion
of state law by a state high court. Fairfax' s Devisee v.
Hunter' s Lessee, 7 Cranch 603 (1813), NAACP v. Alabama
ex rel. Patterson, 357 U. S. 449 (1958), and Bouie v. City of
Columbia, 378 U. S. 347 (1964), cited by THE CHIEF
JUSTICE, are three such rare instances. See ante, at 4, 5,
and n. 2. But those cases are embedded in historical
contexts hardly comparable to the situation here.
Fairfax' s Devisee, which held that the Virginia Court of
Appeals had misconstrued its own forfeiture laws to de-prive
a British subject of lands secured to him by federal
treaties, occurred amidst vociferous States' rights attacks
on the Marshall Court. G. Gunther & K. Sullivan, Consti-tutional
Law 61–62 (13th ed. 1997). The Virginia court
refused to obey this Court' s Fairfax' s Devisee mandate to
enter judgment for the British subject' s successor in inter-est.
That refusal led to the Court' s pathmarking decision
in Martin v. Hunter' s Lessee, 1 Wheat. 304 (1816). Patter-son,
a case decided three months after Cooper v. Aaron,
6 BUSH v. GORE
GINSBURG, J., dissenting
358 U. S. 1 (1958), in the face of Southern resistance to the
civil rights movement, held that the Alabama Supreme
Court had irregularly applied its own procedural rules to
deny review of a contempt order against the NAACP
arising from its refusal to disclose membership lists. We
said that "our jurisdiction is not defeated if the nonfederal
ground relied on by the state court is without any fair or
substantial support." 357 U. S., at 455. Bouie, stemming
from a lunch counter "sit-in" at the height of the civil
rights movement, held that the South Carolina Supreme
Court' s construction of its trespass laws— criminalizing
conduct not covered by the text of an otherwise clear
statute— was "unforeseeable" and thus violated due proc-ess
when applied retroactively to the petitioners. 378
U. S., at 350, 354.
THE CHIEF JUSTICE' s casual citation of these cases
might lead one to believe they are part of a larger collec-tion
of cases in which we said that the Constitution im-pelled
us to train a skeptical eye on a state court' s por-trayal
of state law. But one would be hard pressed, I
think, to find additional cases that fit the mold. As
JUSTICE BREYER convincingly explains, see post, at 5–9
(dissenting opinion), this case involves nothing close to the
kind of recalcitrance by a state high court that warrants
extraordinary action by this Court. The Florida Supreme
Court concluded that counting every legal vote was the
overriding concern of the Florida Legislature when it
enacted the State' s Election Code. The court surely should
not be bracketed with state high courts of the Jim Crow
South.
THE CHIEF JUSTICE says that Article II, by providing
that state legislatures shall direct the manner of appoint-ing
electors, authorizes federal superintendence over the
relationship between state courts and state legislatures,
and licenses a departure from the usual deference we give
to state court interpretations of state law. Ante, at 5 ("To
Cite as: 531 U. S. ____ (2000) 7
GINSBURG, J., dissenting
attach definitive weight to the pronouncement of a state
court, when the very question at issue is whether the court
has actually departed from the statutory meaning, would
be to abdicate our responsibility to enforce the explicit
requirements of Article II."). The Framers of our Consti-tution,
however, understood that in a republican govern-ment,
the judiciary would construe the legislature' s en-actments.
See U. S. Const., Art. III; The Federalist No. 78
(A. Hamilton). In light of the constitutional guarantee to
States of a "Republican Form of Government," U. S.
Const., Art. IV, §4, Article II can hardly be read to invite
this Court to disrupt a State' s republican regime. Yet THE
CHIEF JUSTICE today would reach out to do just that. By
holding that Article II requires our revision of a state
court' s construction of state laws in order to protect one
organ of the State from another, THE CHIEF JUSTICE
contradicts the basic principle that a State may organize
itself as it sees fit. See, e.g., Gregory v. Ashcroft, 501 U. S.
452, 460 (1991) ("Through the structure of its government,
and the character of those who exercise government
authority, a State defines itself as a sovereign."); Highland
Farms Dairy, Inc. v. Agnew, 300 U. S. 608, 612 (1937)
("How power shall be distributed by a state among its
governmental organs is commonly, if not always, a ques-tion
for the state itself.").2 Article II does not call for the
scrutiny undertaken by this Court.
The extraordinary setting of this case has obscured the
——————
2 Even in the rare case in which a State' s "manner" of making and
construing laws might implicate a structural constraint, Congress, not
this Court, is likely the proper governmental entity to enforce that
constraint. See U. S. CONST., amend. XII; 3 U. S. C. §§1–15; cf. Ohio ex
rel. Davis v. Hildebrant, 241 U. S. 565, 569 (1916) (treating as a nonjus-ticiable
political question whether use of a referendum to override a
congressional districting plan enacted by the state legislature violates
Art. I, §4); Luther v. Borden, 7 How. 1, 42 (1849).
8 BUSH v. GORE
GINSBURG, J., dissenting
ordinary principle that dictates its proper resolution:
Federal courts defer to state high courts' interpretations of
their state' s own law. This principle reflects the core of
federalism, on which all agree. "The Framers split the
atom of sovereignty. It was the genius of their idea that
our citizens would have two political capacities, one state
and one federal, each protected from incursion by the
other." Saenz v. Roe, 526 U. S. 489, 504, n. 17 (1999)
(citing U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779,
838 (1995) (KENNEDY, J., concurring)). THE CHIEF
JUSTICE' s solicitude for the Florida Legislature comes at
the expense of the more fundamental solicitude we owe to
the legislature' s sovereign. U. S. Const., Art. II, §1, cl. 2
("Each State shall appoint, in such Manner as the Legisla-ture
thereof may direct," the electors for President and
Vice President) (emphasis added); ante, at 1–2 (STEVENS,
J., dissenting).3 Were the other members of this Court as
mindful as they generally are of our system of dual sover-eignty,
they would affirm the judgment of the Florida
Supreme Court.
II
I agree with JUSTICE STEVENS that petitioners have not
presented a substantial equal protection claim. Ideally,
perfection would be the appropriate standard for judging
the recount. But we live in an imperfect world, one in
——————
3 "[B]ecause the Framers recognized that state power and identity
were essential parts of the federal balance, see The Federalist No. 39,
the Constitution is solicitous of the prerogatives of the States, even in
an otherwise sovereign federal province. The Constitution . . . grants
States certain powers over the times, places, and manner of federal
elections (subject to congressional revision), Art. I, §4, cl. 1 . . . , and
allows States to appoint electors for the President, Art. II, §1, cl. 2."
U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 841–842 (1995)
(KENNEDY, J., concurring).
Cite as: 531 U. S. ____ (2000) 9
GINSBURG, J., dissenting
which thousands of votes have not been counted. I cannot
agree that the recount adopted by the Florida court,
flawed as it may be, would yield a result any less fair or
precise than the certification that preceded that recount.
See, e.g., McDonald v. Board of Election Comm' rs of Chi-cago,
394 U.S. 802, 807 (1969) (even in the context of the
right to vote, the state is permitted to reform " ‘ one step at
a time' ") (quoting Williamson v. Lee Optical of Oklahoma,
Inc., 348 U.S. 483, 489 (1955)).
Even if there were an equal protection violation, I would
agree with JUSTICE STEVENS, JUSTICE SOUTER, and
JUSTICE BREYER that the Court' s concern about "the De-cember
12 deadline," ante, at 12, is misplaced. Time is
short in part because of the Court' s entry of a stay on
December 9, several hours after an able circuit judge in
Leon County had begun to superintend the recount proc-ess.
More fundamentally, the Court' s reluctance to let the
recount go forward— despite its suggestion that "[t]he
search for intent can be confined by specific rules designed
to ensure uniform treatment," ante, at 8— ultimately turns
on its own judgment about the practical realities of im-plementing
a recount, not the judgment of those much
closer to the process.
Equally important, as JUSTICE BREYER explains, post, at
12 (dissenting opinion), the December 12 "deadline" for
bringing Florida' s electoral votes into 3 U. S. C. §5' s safe
harbor lacks the significance the Court assigns it. Were
that date to pass, Florida would still be entitled to deliver
electoral votes Congress must count unless both Houses
find that the votes "ha[d] not been . . . regularly given." 3
U. S. C. §15. The statute identifies other significant dates.
See, e.g., §7 (specifying December 18 as the date electors
"shall meet and give their votes"); §12 (specifying "the
fourth Wednesday in December"— this year, December
27— as the date on which Congress, if it has not received a
State' s electoral votes, shall request the state secretary of
10 BUSH v. GORE
GINSBURG, J., dissenting
state to send a certified return immediately). But none of
these dates has ultimate significance in light of Congress'
detailed provisions for determining, on "the sixth day of
January," the validity of electoral votes. §15.
The Court assumes that time will not permit "orderly
judicial review of any disputed matters that might arise."
Ante, at 12. But no one has doubted the good faith and
diligence with which Florida election officials, attorneys
for all sides of this controversy, and the courts of law have
performed their duties. Notably, the Florida Supreme
Court has produced two substantial opinions within 29
hours of oral argument. In sum, the Court' s conclusion
that a constitutionally adequate recount is impractical is a
prophecy the Court' s own judgment will not allow to be
tested. Such an untested prophecy should not decide the
Presidency of the United States.
I dissent.
Cite as: 531 U. S. ____ (2000) 1 |
