EXCHANGE BETWEEN RONALD DWORKIN
AND CHARLES FRIED
I cannot claim to be a disinterested observer of the events Ronald Dworkin comments on in his essay “A Badly Flawed Election.” I was counsel of record to the Florida legislature in the two Supreme Court cases spawned by the tabulation of the vote in Florida. In our second brief my Harvard colleague, Einer Elhauge, and I presented arguments that closely paralleled the Court's opinion as well as the concurring opinion of the Chief Justice. In spite of that involvement—maybe because of it—I readily concede that this was a difficult case with two sides. Quite unjustified, however, is Dworkin's high dudgeon and barely concealed innuendo that the Court had acted injudiciously out of a partisan zeal to protect its own agenda against future unsympathetic appointments. On the contrary, I see the Court as having reluctantly done the job its commission required of it.
In its first opinion of December 5 the Court reminded the Florida Supreme Court that its work in this matter was not solely a matter of state law (as Dworkin repeatedly suggests) but that it was the Constitution (in Art. II, sec. 1, cl. 2, dealing with the choice of the president) that committed the matter to the state legislature and a federal statute (3 U.S.C. § 5) that assumed that disputes regarding presidential electors were to be resolved by rules established prior to the election in question. So it was a premise of that first opinion that the faithfulness of the Florida Supreme Court to the directions of the state legislature and to preexisting rules was a question of federal law and thus ultimately a proper subject for review by the United States Supreme Court. That opinion was unanimous. I say the Court showed a proper reluctance about becoming involved because it was at