Judicial Federalism after Bush V. Gore: Some Observations
Solimine, Michael E., Justice System Journal
Judicial Federalism After Bush v. Gore: Some Observations*
This article addresses recent developments in judicial federalism, a term that encompasses both how federal courts police the boundaries between federal and state power and how federal and state courts interact. The revival of academic interest in federalism is reflected in a burgeoning literature, but only recently have legal academics and social scientists begun to appreciate their respective scholarship on the topic. The muchdiscussed case of Bush v. Gore (2000) raises significant issues of judicial federalism, but it is unlikely to portend important shifts in how we consider the topic. The article concludes with a suggested agenda for future empirical research on judicial federalism.
The Ironies of Bush v. Gore
The broad resurgence of the academic literature on American federalism over the past decade has been produced primarily by legal academics and political scientists. It has been mostly published in law reviews and social science journals. Yet there seems to be relatively little contact between these groups. On the whole, federalism discussions in law reviews rarely refer to articles in political science journals and vice versa. Several reasons probably drive this phenomenon. Many law professors and political scientists may simply be ignorant of each other's scholarly work. The former may find daunting the often highly statistical research that characterizes much work in social science journals. The latter might be repelled by the difficulties of keeping track of what's being published in the hundreds of legal journals at the many American law schools. Or they might feel that the largely doctrinal, theoretical discussions in most law review articles are irrelevant to their work. This "unfortunate interdisciplinary ignorance," as Frank Cross calls it (1997), is surely not restricted to discussions of federalism. Nonetheless, analysis of judicial federalism would greatly benefit from more exchanges among academics from different professions and disciplines. As a present example, law professors and political scientists serve together on the programs of the annual meetings of the American Political Science Association and the Law and Society Association, and participate in the online Law and Courts discussion list.1
The notorious litigation arising out of the recount of Florida votes in the 2000 presidential election provides a basis for looking at how courts decide federal legal issues and at the relationships between federal and state courts, matters often referred to under the term "judicial federalism." The litigation culminated in the United States Supreme Court's decision in Bush v. Gore,2 which reversed a decision by the Florida Supreme Court. A full discussion of the litigation is unnecessary here.3 What is pertinent is the interaction of federal and state law and federal and state courts. The per curiam opinion of the U.S. Supreme Court found that recounting votes among different counties using disparate standards violated the equal protection clause. Three concurring justices also held that federal statutory law had been violated, and in the course of doing so found it necessary to reject the Florida Supreme Court's own understanding of state law.4 The four dissenting justices, in turn, chastised the concurrence for not deferring to the state courts' interpretation of state law, thus harming a "core [principle] of federalism:'5
As many commentators could not help but observe, the litigation culminating in Bush v. Gore was rich with ironies. With regard to federalism issues, the five members of the majority usually defer to states' rights, but here swiftly reversed a state supreme court decision. Along the way, the concurring opinion, utilizing Warren Court era precedent developed in civil rights cases, obtrusively reexamined state law in the course of concluding that the Florida court had too expansively interpreted state statutes, in violation (in their view) of federal law. …