The 2000 Presidential election with its undeniable complications has forced most legal and constitutional scholars, legal journalists and Supreme Court journalists to examine critically the status of the Supreme Court’s power. For example, articles related to the Court’s accountability or lack thereof, Supreme Court appointments, and possible reform and constitutional interpretation, have filled newspapers, weekly magazines and professional journals alike. Perhaps most problematic is the fact that the Court’s opinion has been, for the most part, considered a partisan opinion. As Harry J. Mansfield pointed out, “I hardly heard anyone agreeing with the thesis of the person he didn’t vote for in the matter of the Supreme Court.” 1
Relying on both court transcripts and commentary, I evaluate critically the U.S. Supreme Court’s decision of December 12. I maintain that the Court’s decision is both reasonable and valid based on a particular interpretation of the purpose, not only of the law, but of the judiciary. There exists a tension in Florida Law between finality, namely, meeting the deadline, and disenfranchising the voters, namely, attempting to count all votes. I argue that the Majority decision upheld the importance of “finality” in rendering their decision. Like the Majority decision, I argue that the Minority dissent and opinion was valid. Unlike the Majority’s concern with the issue of finality, the dissent attempts to uphold the importance of suffrage. They argue that the right to have all votes counted clearly outweighs the concern with “finality.” As a consequence, I argue that the Majority and the Minority of the Supreme Court argue past one another. In other words, both positions can be considered valid if the underlying guiding principle is made explicit, i.e., finality with the Majority opinion and suffrage with the Minority opinion. The arguments can be understood as follows:
- The Majority argued that it was attempting to avoid a national crisis. In other words, the premise underlying their arguments was “finality is of highest priority.” If finality and avoiding a national crisis is deemed an imperative, then the Court, doing what Courts do, namely, interpret the law, did what it should have done.
- The Minority was attempting to make sure that there existed no disenfranchised voters. The premise underlying their opinion was “the right to have one’s vote counted should never be compromised.” If “the right to have one’s vote counted should not, under any circumstances be compromised,” is considered the guiding imperative, then the Minority opinion was not only reasonable but valid.
U.S. Supreme Court’s December 12, 2001 Decision
On December 12, 2001 the U.S. Supreme Court reversed the Florida Supreme Court decision of December 8, 2001 effectively barring the continuance of manual recounts enabling the Florida Legislature to appoint Bush electors. As a consequence, Al Gore conceded the 2000 Presidential Election on December 13, 2000.
On the application for stay of December 9, 2000 the U.S. Supreme Court Majority decided that “the petitioner, i.e., George W. Bush, had demonstrated sufficiently that he had ‘substantial probability’ of succeeding in his petition.” In other words, the Majority ruled that the recount, if allowed to continue, could cast a cloud over the legitimacy of the election. The Majority’s two central concerns were the following: 1) are votes being counted legal votes, and 2) are the standards for counting votes uniform, ensuring that counting of votes is not unlawful. They maintained that the recount should be halted to avoid “irreparable harm to the petitioner.” The issue of Federal jurisdiction was not properly evaluated, however. Justice Stevens, arguing for the dissenting minority, maintained first, that the Federal Judiciary and the U.S. Supreme Court most specifically has tended to abstain from interfering in State Supreme Courts’ interpretation of state law. They have, keep in mind, stepped in when State Court interpretations are, in the words of Chief Justice Rehnquist, irreconcilable with prior precedent. 2 The question one should consider, then, is whether the Florida Supreme Court’s ruling on December 8 was not only inconsistent with statute but also with precedent. As Ginsburg points out, however, not only was the Florida Court decision consistent with statute and with Florida precedent, it was also consistent with rulings by other State courts. 3 Secondly, the court did not, as is customary, construe its jurisdiction in a narrow manner, especially because Congress has jurisdiction in these matters. Clearly 3 U.S.C. Sec. 15 determines that Congress, not the Judiciary, shall be responsible for determining which electors are lawful electors:
. . . then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.
The per curiam decision of December 12, 2000 outlined, as did the application for stay, the general issues in question. 4 First the Majority explained that the petition under consideration maintained that the Florida Supreme Court’s definition of a “legal vote” was not consistent with the
Florida Statute. Second, the petition maintained that the standard by which “undervotes” were to be counted was arbitrary and subjective. The questions at issue were:
- Did the Florida Supreme Court establish new standards for resolving election disputes that were not only inconsistent with Florida Statute and precedent, but that violated Article II of the U.S. Constitution and failed to comply with 3 U.S.C. Section 5?
- DidthelackofauniformstandardforcountingtheundervotesviolatetheEqual Protection Clause and Due Process Clause of the 14th Amendment?
Chief Justice Rehnquist’s opinion, with whom Justices Scalia and Thomas joined, argued that the Florida Supreme Court had been unjustified in usurping the right of the Florida Legislature to appoint electors and of rejecting unconstitutionally the “reasonable interpretation” of Florida Election Code, especially 97.012 and 106.23, by Secretary of State Katherine Harris. As Rehnquist argued, the “uniquely important national interest” of the presidential election forced the Majority to believe that Federal intervention was necessary. Article II, Rehnquist argued, maintains that “each State shall appoint, in such a manner as the Legislaturethereof may direct,” electors for President and Vice President (emphasis added.) 5 The Florida Supreme Court, by intervening, had attempted to undermine Article II. Furthermore, Rehnquist argued the Florida Supreme Court ignored the “legislative wish to take advantage of the safe harbor provision provided by 3U.S.C.Sec.5.” 6 While the Florida Legislature had empowered the courts of the State to provide relief under a contested election–Fla. Stat. 102.168–it “must have meant relief that would have become final by the cut-off- date of 3 U.S.C. Sec. 5.” 7
That Rehnquist construed Article II too narrowly should be clear. One should recognize, however, that Rehnquist was trying to avoid what some have labeled a “national crisis.” The courts of the State, in this case, the Florida Supreme Court, have the right and responsibility to ensure that legislative power and actions are consistent with the State’s Constitution. In this case, the Florida Supreme Court ruled that Katherine Harris’s definition of a “legal vote” was not in line with the Constitution. Section 101.5614(5) of the Florida Statutes indicates that “no vote shall be declared invalid or void if there is a clear indication on the ballot that the voter has made a definite choice as determined by the canvassing board.” Consequently, the Florida Supreme Court Majority interpreted “legal vote” to be a vote where a clear indication of voter intent could be determined. Harris, however, maintained that a “legal vote” was a properly marked vote that could be counted by the vote tabulation system. The disagreement concerned what constituted an “error in the vote tabulation,” not necessarily whether the Florida Supreme Court violated Article II or 3 U.S.C. Section 5. Keep in mind Judge Terry P. Lewis of Leon County ruled on November 14, 2001 that the Secretary of State had to withhold her decision to ignore late returns until all relevant information had been examined by the Canvassing Boards. 8 Was Judge Lewis’s decision in violation of Article II? It is clear or should be clear that the “7th day after the election deadline” had just been compromised by Lewis’ ruling. Was Judge Lewis acting within the purview of the court? If so, why isn’t the Florida Court’s interpretation of Florida Law a decision that falls with the Florida Supreme Court’s legislatively granted power?
The Florida Supreme Court ruled, maintaining that while the Secretary of State could use her discretion to determine whether to accept “late” ballots, she could not do so if it meant that she would “summarily disenfranchise innocent voters.” 9 While we can consider both the position of the Court and the position of Katherine Harris reasonable, one should wonder whether they were appealing to the same principle. The Florida Supreme Court maintained that Florida Statutes clearly give the power to vote to the people, and it follows, the Court argued, that all ballots clearly indicating the intent of the voter should not be ignored. Furthermore, the Court argued, Florida Statute delineates the recount process. 10 This implies, the Florida Majority maintained, that recounts are an important part of the Florida Election Code. If a recount is consistent with the Florida Election Code would it be reasonable to assume that a recount, a manual recount if determined necessary by the Canvassing board, could or should be accomplished within the “7th day after the election” deadline? Keep in mind that Katherine Harris relied on Florida Statute 102.112 instead of 102.111. Statute 102.112 states that the Secretary of State shall ignore late returns; statute 102.111 states that the Secretary may ignore late returns. The Secretary determined that 102.112 was the governing statute and, as a consequence, decided that she should ignore late returns. Like Rehnquist and the Supreme Court Majority, Katherine Harris affirmed the importance of ending the “crisis.”
One of the issues was whether the Florida Court or Katherine Harris was correctly identifying the governing statute. Rehnquist sided unquestionably with Harris, but as we should recognize, this is a matter of judicial interpretation. Moreover, as we can see, the Florida statutes are not specific or complementary. Therefore, that the Florida Supreme Court rewrote or created legislation is questionable. They did, no one denies, determine which was the governing statute. Isn’t this what courts customarily do?
The dissent argued, for example, that Rehnquist’s opinion ignored the following: 1) that no state is required to abide by the safe harbor provision, 2) safe harbor issues are issues, as stated in Article II, of the jurisdiction of Congress and not the Judiciary, 3) Article II does not maintain that the legislature’s role to choose electors is devoid of any constitutional limitations. 11 As Stevens argued in dissent, Article II takes into account the role of the state judiciary in interpreting election laws and the Florida Supreme Court ruling did not lead to a substantive change in the State Election Code. As a consequence, to maintain that the Florida Supreme Court usurped the right of the legislature by not allowing them to appoint electors and rewrite the statute is not, as Rehnquist argues, a departure from legislation. The Florida Supreme Court did what courts generally do, namely, they determined which statute was the governing statute. Moreover, their decision was consistent with precedent. More importantly, however, the Florida Supreme Court’s decision should be understood in connection with their professed belief that all “legal votes” should be counted. Their position relies on the idea that the legislative intent was that all votes that could be counted should be counted.
That this question (i.e., “Did the Florida Supreme Court establish new standards for resolving election disputes that were not only inconsistent with Florida Statute and precedent, but that violated Article II of the U.S. Constitution and failed to comply with 3 U.S.C. Section 5?”) does not provide an easy answer should be clear. Florida Election Code as it is written contains a number of inconsistencies. First, Florida Code does not clearly identify whether all counties must in fact meet the “mandatory” 7th day after the election deadline. In fact, Florida Statute indicates that the Secretary of State has the power to fine those counties that do not meet the November 14th deadline. Does this mean that the Secretary of State should ignore the votes that do not meet the deadline or that she has the power to put pressure on the counties that do not tally their votes in a timely fashion? If the “date” mandated cannot be compromised under any circumstances, other than natural disaster, why does Florida Election Code give the Secretary of State this power? Moreover, Florida Statute clearly identifies and delineates rules and governance regarding recounts. What is the legislative intent? Rehnquist suggests that while the Florida Supreme Court has the right to judicial review it does so only if it respects the State imposed deadline. The suggestion, then, is that the governing statute is the statute that sets the deadline. The Florida Supreme Court Majority, however, disagreed. They argued that the “legislative intent,” determined by Rehnquist to be that the deadline be met, was in fact that all votes that could be counted, by a tabulation system or manually, should be counted to ensure that the government remained a government of the people and by the people. We can or should see, at this point, that one of the conflicts was deciding the guiding principle, i.e., finality or doing everything possible to make sure everyone’s vote could be counted.
This issue forces us to evaluate our second question i.e., did the lack of a uniform standard for counting the undervotes violate the Equal Protection Clause and Due Process Clause of the 14th Amendment? While Justices on the Majority and Justices on the Minority, i.e., Souter and Breyer, recognized that the lack of uniform standard potentially presented some constitutional concerns regarding the 14th Amendment, we should, as we consider this problem, wonder whether a solution to this potential problem could have been adopted.
As the per curiam decision affirmed:
When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. 12
Appealing to this principle, the U.S. Supreme Court Majority argued that the fundamental rights of the voters would be undermined if a recount was allowed to continue. As they pointed out, the issue is not whether we count all votes, but the manner in which the votes are to be counted. The Equal Protection Clause applied to the manner in which the votes were being tabulated. The Majority determined that the recount procedure was not consistent with the obligation to avoid arbitrary and disparate treatment to voters or votes. The Majority claimed that the lack of uniform standard could lead, as was being demonstrated in Florida, to arbitrary standards that could undermine the fairness of the election. 13 That the Florida Supreme Court should not have forced the Secretary of State to certify the ballots, counted using different standards, of Palm Beach, Broward and Dade counties is clear. The Florida Supreme Court could easily be accused of partisanship. As Stuart Taylor, Jr. pointed out: “With no real explanation, the Florida court conclusively awarded all 911 of these ‘votes.’” 14
The U.S. Supreme Court Majority opinion did, however, admit that “the search for intent can be confined by specific rules designed to ensure fair treatment.” 15 But the Court argued “it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial work.” 16 Consequently, the Majority decided to stop the recount to ensure that the Florida Legislature would have the opportunity to elect its electors. As Justice Ginsburg noted, “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.” 17 Again, we can see that what is at issue is whether finalizing the election overrides the belief that all votes that could be counted should be counted.
Justice Stevens, joined by Ginsburg and Breyer, argued that Florida Law identifies “a clear indication on the ballot that the voter has made a definite choice” as the uniform standard. Like the “beyond reasonable doubt” standard used in criminal cases, this issue is not a constitutional issue. Secondly, Stevens argued Florida Law sets down the following guiding principles: 1) the legislature will select electors through a popular vote, 2) the right to have votes counted is a constitutional issue, 3) all ballots that reveal clearly voter intent are deemed to be valid votes. From this it follows, Stevens argued, that the Court, not Katherine Harris, was correct in trying to find a way to avoid disenfranchising a number of voters. If the votes could be counted, then the Florida Supreme Court ruled they should be counted. The tension in Florida Law is between finality, namely, meeting the deadline, and disenfranchising the voters, namely, attempting to count all valid votes. The Florida Supreme Court decided to attempt to count all valid votes, while Katherine Harris and the U.S. Supreme Court Majority decided to rule in the interest of finality.
In this essay, I have tried only to show that both opinions are valid. Unlike constitutional and legal scholars who remain divided along partisan lines, I maintain that we should acknowledge how difficult and complicated the adjudicative process can be. As I read the opinions of the Justices I find that the underlying premises that guide their respective decisions differ and, as a consequence, they reach very different conclusions. This “problem” can be seen in at least two ways. First, the confusion over “legal vote” plays a significant role in both decisions. The Florida Statutes are inconsistent when it comes to determining when a vote is legal. One interpretation comprehends a legal vote to be a ballot that shows clear indication of voter intent; on the other hand, one could understand legal vote to mean a properly executed vote. Moreover, understanding an “error in vote tabulation” also cast a cloud over the Court’s decision. Was “error in tabulation” supposed to mean a machine error or a failure to count a vote? If one affirms with the U.S. Supreme Court majority that “finality” is the overriding principle, then one will, like the Majority, tend to interpret “legal vote” as a vote that is properly executed. If, however, one asserts, with the Minority, that the overriding principle is the “right to have one’s voted counted,” then one will, like the Minority, tend to interpret a legal vote as a ballot that shows clear indication of voter intent.
Secondly, one can see that the opinion of the Majority and the opinion of the Minority diverged regarding their understanding of “irreparable harm.” The Majority believed or maintained that George W. Bush, the petitioner in this case, could suffer “irreparable harm” if the votes considered “legal votes” were counted, possibly casting a cloud of illegitimacy over the election. 18 The Minority, however, argued that preventing the recount constituted a violation of the people’s right to vote and therefore, those disenfranchised voters could be the victims of “irreparable harm.” 19 Who was correct? We can see that interpretations play a significant role in the Justices’ decisions and that a background set of values govern their position. 20 In other words, is the right to vote (for the President) a right of the people? Scalia maintained that our Founding Fathers never intended that the people vote directly for the President. We might question, however, whether or not the mentality that governed the Founding Fathers, i.e., an elitist mentality, should remain in place today. As Eric Foner argues, “the Electoral College was created by a generation fearful of democracy. Its aim was to place the choice of the President in the hands of each of the state’s most prominent men, not the voters.” 21
Florida legislation has not provided enough clarity in determining whether they want election officials to rule on the side of finality or on the side of the fundamental right to have your vote counted. As a consequence, if the issue of “legal vote” was made clearer perhaps a per curiam opinion could have been justified by either the Florida Supreme Court or the U.S. Supreme Court. If the Florida Statutes lacked the ambiguity detailing conditions under which the deadline could be comprised, the Court’s job could have been made easier. As the U.S. Supreme Court Majority opinion noted, Florida Statute 102.166 states that both overvotes and undervotes should be identified and counted during a recount. The Florida Supreme Court, however, only required that undervotes be counted. Furthermore, the Majority correctly pointed out the Florida Supreme Court’s wantonness to have certain votes count that were counted under differing standards was arbitrary. This suggests that there were clearly some issues glossed over that should have been taken into account. No one should deny that the respective opinions provided a justification for their position, something all or most skilled judges can provide. The question is which of the underlying premises as I have identified them, namely, “finality and avoiding a national crisis” and “right to have vote counted,” is true.
The implications of this decision will reverberate for many years to come. And although the U.S. Supreme Court Majority maintained in its opinion that their “consideration was limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities,” one must wonder why they had to qualify their decision in this manner. 22 We must keep in mind that law and judges’ interpretations of the law should be predictable. Is the Majority suggesting that under similar circumstances, but with Gore ahead, they could have just as easily been justified in opining differently? Is the Minority suggesting that under similar circumstances, but with Gore ahead, they would have rendered the same opinion?
For example, what brand of federalism was being practiced by the Majority and the Minority? Generally, the Justices on the Majority are champions of State rights and State sovereignty, and some suggest of constitutional constraint. Generally, the Justices on the Minority practice cooperative federalism. Does only one position entail judicial activism? We should see, furthermore, that it was difficult in this case to predict with certainty how the Judges were going to rule. As Alan Dershowitz points out, “Predictability is the essence of judicial legitimacy and accountability.” 23 During the 2000 Presidential Election it was almost impossible to determine, based on consistency and prior decisions, what the particular Justices were going to decide. One thing that was certain and which turned out to be a determining factor was partisanship. Both camps seemed to decide in advance the “desirable outcome” and provided opinions that justified their respective positions. 24 Thus, this decision should enable us to recognize the lack of impartiality in Court decisions with so much at stake, forcing us to reconsider the process of judicial appointments.
And while the 2000 election controversy seems to be an exception, we can certainly point to other cases that are equally relevant. Dred Scott v. Sanford, Marbury v. Madison, Brown v. Board of Education, Roe v. Wade, and Planned Parenthood v. Casey are a few examples of landmark cases that not only had undeniable political implications, but were instances where the Court was clearly divided. I am not suggesting that we should try to undermine the courts (in this case, the Supreme Court). I am suggesting only that we should recognize that adjudicative neutrality is not as neutral as it is espoused to be. I am suggesting that we should make clear that ideological conflicts are encountered in jurisprudence. Courts and justices, like politicians, do have substantive positions regarding the purpose of the law. So why, we should ask ,“is [it] a journalistic convention to state that the Republican Party now controls the White House, the Senate [and/or] the House of Representatives, but to exclude talk of a right-wing Republican Supreme Court[?]”25
Dershowitz, Alan M. Supreme Injustice: How the High Court Hijacked Election 2000. New York: Oxford UP, 2001.
Dionne Jr., E.J. and William Kristol, eds. Bush V Gore: The Court Cases and the Commentary. Washington, D.C.: Brookings Institute Press, 2001.
Foner, Eric. “Partisanship Rules.” The Nation 1 January 2001. Rpt. in Dionne Jr. and Kristol. Kennedy, Randall. “Contempt of the Court.” The American Prospect, vol. 12, no. 1, January 1-15, 2001, Rpt. in Dionne Jr. and Kristol.
Mansfield, Harry. “What We’ll Remember in 2050.” Chronicle of Higher Education 5 January 2001. In Dionne Jr. and Kristol.
Posner, Richard A. Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts. New Jersey: Princeton UP, 2001.
Scalia, Antonin. A Matter of Interpretation. New Jersey: Princeton UP, 1997.
Taylor Jr., Stuart. “Why the Florida Recount was Egregiously One-Sided.” In Dionne Jr. and Kristol.
- Harry Mansfield, “What We’ll Remember in 2050,” Chronicle of Higher Education 5 January, 2001. Reprinted in Bush V Gore: The Court Cases and the Commentary, eds. E.J. Dionne Jr. and William Kristol (Washington D.C.: Broookings Institute Press, 2001) 340.
- Dionne Jr. and Kristol 111. All page references to the court cases, decisions and opinions will be to this text.
- See Dionne Jr. and Kristol 138.
- Per curiam decisions, decisions given by the Court rather than by specific justices, are generally decisions that are uncontroversial. That this case is controversial seems clear. Why then, did the Majority decide to offer a per curiam decision? Some have suggested that the Majority decision was based on a 7-2 vote. That Breyer and Souter argued that there were constitutional concerns regarding the way the manual recount was taking place is clear. That the Majority decision was 7-2 is far from clear. Neither Souter nor Breyer sided with the Majority. Both Justices argued that the case should have been remanded giving the Florida Court an opportunity to avoid violating the Equal Protection Clause.
- Dionne Jr. and Kristol 109.
- Dionne Jr. and Kristol 115.
- Dionne Jr. and Kristol 116.
- Dionne Jr. and Kristol 23.
- Dionne Jr. and Kristol 46.
- See Fla. Stat. 102.166.
- See Fla. Stat. 102.168.
- See Dionne Jr. and Kristol 103.
- Dionne Jr. and Kristol 105-107.
- Stuart Taylor, Jr. “Why the Florida Recount was Egregiously One-Sided.” In Dionne Jr. and Kristol 333.
- Dionne Jr. and Kristol 104.
- Dionne Jr. and Kristol 106.
- Dionne Jr. and Kristol 132.
- See Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts (Princeton, NJ: Princeton UP, 2001) Chapter 2.
- See Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (New York, NY: OxfordUP, 2001) 57-70. Cf. Posner 95-97.
- Lawyers and judges require a background prescriptive theory to determine the applicability of rules. If the lawyer and judge require a background prescriptive theory to determine the branch of law in question, then it follows that the sense of impartiality they seek is impossible. As Dworkin argues against Scalia, the idea that a judge interprets or extracts the “plain meaning” from the text and proceeds to apply the law in a formal manner, overlooks the fact that “intent” is not related only to expectation. Scalia, Dworkin maintains, seeks the “semantic intention” enabling him to determine what Legislators intended when they wrote the law. For example, in Smith v. United States Scalia argued that the expression “use of a firearm” meant “use of a gun for what guns are normally used for, that is, as a weapon.” Dworkin suggests that “using a firearm” can be used to describe a situation when a gun is used as a threat and/or when a gun is used “for any purpose including barter.” This means, Dworkin asserts, that the interpretive process requires more of the judge than Scalia grants. In other words, the judge does not simply identify plain meaning, but has, on most difficult occasions, to determine the intent of the legislators. Antonin Scalia, A Matter of Interpretation. (Princeton, NJ: Princeton UP, 1997) 117.
- Eric Foner, “Partisanship Rules,” The Nation 1 Jan. 2001. Reprinted in Dionne Jr. and Kristol 293.
- Dionne Jr. and Kristol 107.
- Dershowitz 118.
- For example, Scalia’s analysis of the Church of the Holy Trinity v. United States enables him to illustrate his point. The Church had contracted an Englishman to be their pastor and proceeded to encourage the Englishman to come to the States. While the Southern District Court of New York ruled that the action by the Church of the Holy Trinity violated a federal statute that maintained that it is unlawful “in any way to assist or to encourage the importation or migration of such alien . . . to perform labor or services,” the Supreme Court overturned their decision (Scalia 19). The Supreme Court argued that the law was meant only to discourage manual laborers and as a consequence that while the action was within the letter of the statute, it was not within the spirit of the law or intention of the legislators. Scalia’s point is that this should not take place. If the action violates clearly the language of the law, then the judge has the obligation to maintain that the action in question violated the law. The problem, Scalia argues, is that judges are not legislators and as a consequence, they should not be creating laws.
- Randall Kennedy, “Contempt of the Court,” The American Prospect, 12.1 (2001) 1-15. Reprinted in Dionne Jr. and Kristol 337.