Florida and the Death of Justice

I've had my eye on that state for a while: it seems that whenever constitutional evil is being perpetrated in this country, Florida is mixed up in the mess, and never in a good way. A bit of legal history, perhaps:

The College Savings Bank sells certificates of deposit whose yield is indexed to the cost of a college education. The CSB took out a patent on the concept of such CDs and the investment strategies they were using in order to be able to meet their obligations to families buying the CDs. Florida liked this idea and decided, under the auspices of the Florida Prepaid College Board (a.k.a. the Florida Prepaid Postsecondary Education Expense Board, the name by which it shows up in all the legal documents) to offer a similar plan to its residents for prepaying tuition to a variety of Florida colleges. The College Savings Bank was upset, perhaps understandably, and sued Florida (in a New Jersey court) for patent infringement and for false advertising.

Florida fought the case tooth and nail on the grounds of sovereign immunity, the doctrine that a "sovereign" entity (usually a federal or state government) enjoys an absolute "immnuity" from being sued. That is, you can't sue a government unless they specifically allow you to. Historically, sovereign immunity goes back to the days when feudal lords maintained their own courts of justice -- you couldn't sue a lord for anything he did in his capacity as a sovereign lord. The rule is set out specifically as the 11th Amendment to the Constitution:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

The U.S. Constitution makes some exceptions to this principle (usually by reserving to Congress certain powers, as over money, foreign policy, and commerce), and various acts of Congress have carved out other exceptions. In particular, Congess passed a 1992 law abrogating states' sovereign immunity in the case of patent infringment, so that states could be sued for intellectual property violations in federal court. In appealing to the Supreme Court, Florida maintained that Congress lacked the authority for such an action. [To quote from A Man for All Seasons), Florida held that Congress "'has not the competence', or words to that effect."]

The Supreme Court, by a vote of 5-4, agreed with Florida. Specifically, the Court had previously ruled that Congress's normal operating powers (those deriving from Article I of the Constitution, principally the good old Interstate Commerce Clause) didn't give it the authority to strip states of their immunity. On the other hand, the 14th Amendment did give Congress such powers. The first paragraph of the Amendment limits the arbitrary sovereign powers of states:

Section 1. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

and the fifth paragraph gives Congress the power to enforce those limits:

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Boiled down, in FLORIDA PREPAID POSTSECONDARY EDUCATION EXPENSE BOARD v. COLLEGE SAVINGS BANK et al., the majority held that, in order to rip into sovereign immunity, Congress needed to a) prove that the states were doing something in violation of 1), and b) prove that Congress's legislative response satisfied 5) by being appropriately targeted to that violation. And when it came to patent infringement, the majority said "no dice: states infringing on patents isn't important enough to make a Federal case out of, and besides, your response is way too broad."

I'm not going to get into the meat of that part of the argument -- the opinion and the dissents both got pretty heavily into the technical details of patent law and the uniformity of intellectual property standards -- other than to say that, while one may disagree with it (as I do), one probably needs to grant (as I do) that the underlying Constitutional reasoning is at least defensible. The Amendment says such-and-such, and this is what such-and-such means, and this-that-and-the-other don't pass muster according to that interpretation of such-and-such. It's a valid piece of legal reasoning.

No, where I start plotzing is when I start thinking about the implications of that reasoning. Florida may perfectly well be engaged in violations of patent law that any private citizen or entity would be liable up the wazoo for, but its sovereign immunity protects it from being sued in a Federal court. On the other hand, that same principle also shields Florida from being sued in a state court. The old English common-law principle was that "[The King] can not be compelled to answer in his own court, but this is true of every petty lord of every petty manor." A state may not be named as a defendant in its own courts unless it has specifically waived its sovereign immunity. The difference between then and now, though, is that back in Olde England, you couldn't sue your lord in his own court, but you could sue him in his lord's court -- the very avenue the Supreme Court closed off in this case.

Thus, while the ruling may have rested on what seems like a wholly legitimate constitutional reading, following through on that reading creates a profoundly unjust situation, in that it creates situations in which an offense can be identified for which there can be no legal redress. Any action carried out by a state which fails to meet the criteria of the Supreme Court's two-part 14th Amendment test and for which the state itself provides no remedy is effectively uncontestable, even if that action, considered in isolation, violates 1) of the 14th Amendment. Reading 5) as a limitation on Congress's dictatorial powers results in the creation of not one potentially dictatoral legislature, but fifty. You follow one legal principle far enough -- in this case, sovereignty -- and you wind up squelching another -- the right to judicial redress for wrongs committed. A state can violate your patents, lie to you over the radio, even break Federal laws while engaged in activities totally unrelated to any governmental function, and still enjoy total immunity from any suit you could possibly bring over it. Basically, the College Savings Bank was shit out of luck, just because the Florida Prepaid College Board had the good fortune to be affiliated with the State of Florida.

Having won itself the right to steal the products of your thought, Florida proceeded to ask the Supreme Court to exempt it from the Age Discrimination in Employment Act. Using essentially the same reasoning, the Supreme Court ruled, in KIMEL et al. v. FLORIDA BOARD OF REGENTS et al., again by a vote of 5-4, that states could not be sued for monetary damages for age discrimination. In many ways, this is a far more egregious case than the College Savings Board one, since the harm involved is so much more directly identifiable. Thanks to its buddies on the Supreme Court, Florida is now free to behave barbarically towards its employees. Unless it's directly a violation of the U.S. Constitution, pretty much nothing is sacred. It's a loophole you could drive a truck through, and Florida has.

I've taken this little journey through recent legal history for a reason: I'm about to discuss another 5-4 Supreme Court decision that starts from a reasonable-seeming reading and winds up creating another category of wrongs without possible redress, and once again, it's all damn Florida's fault. I refer, of course, to Bush v. Gore.

When it comes to stupidly narrow readings, Florida really tried to push its luck. Article II, Section 1 of the U.S. Constitution states, regarding the selection of Presidential electors, that "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors." Arguing before the Supreme Court on Monday, Bush lawyer Ted Olson tried to convince the Court that this language vests complete power over the election in the state legislature, so that the lack of any language in Florida's election statues specifically allowing the Florida Supreme Court to adjudicate disputed elections should be construed as a Federally-sanctioned ban on their stepping into the process.

A moment's thought makes clear just how frightening that line of reasoning is. The Florida statutes do give a role to circuit courts, so, by Olsonian implication, any decisions made there are unappealable, thus giving Florida one highest court for most matters, and an entirely different set specifically for U.S. Presidential elections. A similarly bizzare exceptionalism applies to the question of final authority in setting statutes: if the Florida Supreme Court were to overrule an act of Florida Legislature in setting election law as contravening the Florida State Constitution, would it have jurisdiction, or would such acts not be subject to normal constitutional review by dint of the Article II language? In normal practice, the courts in this country are assumed to hold final legal say when they rule against their corresponding legislative bodies, but this principle's constitutional groundings are almost never challenged, perhaps because the courts are careful not to press the issue too much. Any situation in which the court were given unassailable final say, or were entirely prohibited from enforcing their establishing constitution, would be a dangerous one indeed. The ambiguity of this grey area keeps both courts and legislatures in line: definitively elevating one or the other is just asking for trouble.

Olson was opening a huge can of worms with this argument, and he got grilled harshly on it by Kennedy and O'Connor, to the point where he openly admitted that "it may not be the most powerful argument we bring to this Court." The Supreme Court would have been inviting disaster to agree to this line of reasoning, and they did something even better than slapping it down: they completely sidestepped it. This jurisdictional argument doesn't enter into their final judgement -- the majority found grounds enough to reverse the Florida Supreme Court decision without needing to pull the pin on the Article II grenade.

That majority opinion, which clocked in at 5-4 yet again (and every 5-4 I've mentioned so far has been the exact same five and the exact same four), did, however, buy into another one of Florida's hideous readings of iniquity: that the Equal Protection Clause of the 14th Amendment (the last clause of 1), above) required the voiding of the Florida Supreme Court's ambiguous "intent of the voter" standard for ordering manual recounts.

It is, at least in theory, a tempting and plausible line of reasoning. In exercising their rights as voters, Florida citizens are entitled to equality in the way their votes are counted. The state must not discriminate against some of them by applying different standards when counting their votes, by allowing some of them to vote merely by dimpling a chad while requiring others to fully detach it from the ballot. And thus, the Florida Supreme Court erred by ordering a recount while failing to set rules for that recount which would guarantee compliance with the Equal Protection Clause.

Before I get into the awful consequences of this line of reasoning, I'd like to do my best to tear it to shreds (partly by cribbing a bit from the dissenting opinions). The first, and best, counterargument is that the status quo restored by vacating the Florida Supreme Court's ruling of the 8th itself contains sufficiently blatant violations of Equal Protection that the Equal Protection justification for returning to that state of affairs fails. Justice Souter made precisely this point in his dissent: the currently certified vote totals in Florida already use such a mishmash of methodology and technology that their Equal Protection bona fides are just as suspect. The second argument I see is that the lack of a specific standard in the Florida Supreme Court's ruling does not preclude a recount's compliance with the Clause: one could hold, variously, that the implementing magistrate (Judge Lewis), or the various canvassing boards might be entrusted with setting more specific standards, or even that the lack of an articulated standard does not in itself violate Equal Protection. And thirdly, the argument that the United States Supreme Court must intervene to directly block such violations flies in the face of the Court's earlier rulings that the 14th Amendment's 5) precludes such federal interventions. That is to say, when did the Fearsome Five suddenly start believing that the 14th Amendment allows -- nay, requires -- proactive steps at the Federal level? [Now you see, perhaps, why I went into such excruciating detail when discussing the College Savings Bank case -- and also why Olson pushed his Article II claims so strongly].

Over and above my belief that the Equal Protection argument is an unsound one, I think that sticking to it creates an unjust situation. The majority reverses the decision to order a manual recount, but otherwise throws the case back to the Florida Supreme Court. Given the December 12th "safe harbor" deadline and the December 18th deadline for the meeting of electors, the per curiam opinion questions the feasibility of any further recount, even one satisfying the Equal Protection clause. That is, the Court ruled that there is longer time for a constitutional recount, so that the one ordered by the Florida Supreme Court must therefore be unconstitutional.

This is where the screaming starts. One, the finality of the December 12th deadline rests on the "safe harbor" provision, specifically on the Florida Legislature's implied desire to satisfy that deadline. Thus, a legislative action, even an implicit one, a priori precludes judicial discretion and review. Two, the impossibility of completing an uniform count by that time has been cauesd, in large part, by the plaintiffs' (Bush, Cheney, and the altogether evil state of Florida) actions to delay and prevent such a count, and also to contest recounts in such a way as to maximize the differences in the counting standards. As a public position, such behavior is rank hypocrisy, but one might hope that the law looks upon such claims as it does upon self-made orphans' cries for mercy.

And three, the Supreme Court itself, through its December 4th remanding and its December 9th stay, was the decisive agent in making a timely recount impossible. The Supreme Court's very decision to hear the case, and the manner in which it chose to do so, were thus in some sense the deciding factor in the results of the case. The Court granted the preliminary injunction on the 9th on a "substantial liklihood" of victory for the plaintiffs, but in hindsight, part of the Court's decision is based on circumstances created by its own granting of the injunction -- raising the disturbing possibility that it might have ruled the other way had it not granted the injunction, so that its guess about its ultimate ruling acquired the nature of a self-fulfilling prophecy. [Realistically, the Court probably wouldn't bave ruled any differently, but the Supreme Court of the United States, of all institutions, should not be violating the Mike Hyun rule. It's not as though the running out of time just happened, out of the blue.]

Still, what's done is done. The Supreme Court looked at the Equal Protection Clause and at the deadlines and concluded that nothing could be done. It didn't rule that nothing should be done, only that nothing could be done. It had the option to throw out the whole case. It didn't. It had the option to affirm the recounts or to order them under its own choice of standards. It didn't. Instead, it concluded that its hands were tied by the law, that the Florida Supreme Court's recount was no good and had to go, and beyond that, well, the Big Nine couldn't really agree, not even just the Five, so they didn't really do anything.

They let stand all sorts of supporting points the Bushies would have loved to have them throw out. They didn't argue with the evidence that there might be properly executed but uncounted ballots (even if one buys the argument that one need examine only the "legal votes," does not one still need to examine the ballots to separate those containing legal votes from those not?). They didn't say that recounts might not be warranted. They didn't contest that the Presidency might hang in the balance. They didn't reject claims that failure to recount might result in effective disenfranchisement. In short, they acknowledged (even if only by implication) that there existed either outright wrongs or the unexamined possibility of such wrongs, without leaving open any avenue for effective legal examination and redress of those wrongs. And thus we return to the College Savings Bank case, only this time Florida isn't just taking away people's intellectual property, it's taking away their fundamental enfranchisement as American citizens. And the Supreme Court, once again, stands by saying "Yes, quite possibly there's something wrong here, maybe so, but, so sorry, there's nothing to be done about it. The law, you see,"

It comes down to a contest of legal principles. Most Supreme Court cases do this -- what starts as a couple of people upset at each other turns into a huge Clash of the Titans, rock-em sock-em-style, one Big Word against another. [Dahlia Lithwick has a wonderful dispatch about this "shadow case" effect.] (That is, of course, why certain cases wind up before the Supreme Court, and others don't. Only the Big Issues percolate all the way up.) In this case, the Supremes stuck up for the fair and uniform counting of votes. They also stuck up for the reliability and finality of the electoral process. It's really hard for me to argue with either of these goals. They're good goals. It's just unfortunate that in protecting them, the Court decided to shortchange justice, in the form of your ability to rely on the courts to provide redress for wrongs you've suffered. I happen to think that this component of justice is so fundamental that it overrides almost anything else. This is one of of the two or three reasons we have a judicial system at all. But apparently the Supreme Court, by that same accursed 5-4 majority, disagrees.

Somewhere out there, Florida is laughing.

Nothing today on the election wrap-up itself. I fear there'll be time enough for that tomorrow. Plus, I needed to tend to Vlysses. Writing this, I felt two things: 1) The details and principles of law are really cool. 2) If Laurence Tribe and David Boies couldn't stop this from happening, law is a futile endeavour. In legal writing, there isn't supposed to be any reading between the lines, which is perhaps something else that appeals to me here, given how many pieces I write that I mean to be taken purely at face value. But then there are the footnotes . . . . 12'12'00