Supreme Court Transcripts

It’s not as though this court promulgated a rule for the future about December 7: “In commemoration of Pearl Harbor, we say December 7 is the day.” No. What they did was say, “We have to find a date which will accommodate these conflicting statutory provisions and policies in light of what our Constitution tells us.”

And it would amaze—I would think amaze this court to see anyone saying that because an opinion was organized under Roman numeral headings...

SCALIA: And Professor Tribe...

TRIBE: ... in such a way that...

SCALIA: Isn’t it also true, Professor Tribe, that Part 8 of the opinion relies on four things: the Florida Constitution, earlier Florida decision-construing statutes, an Illinois case and a federal case...

TRIBE: Absolutely.

SCALIA: ... but not just the Illinois...

TRIBE: That’s right.

SCALIA: ... their Constitution.

TRIBE: And surely if...

SOUTER: And is it also true—is it also true that the inability to use Section 7 depended in the Florida Supreme Court’s reasoning not on the existence of the Constitution as the sole reason, but on the inability to make the December 7 date final and provide for the recounts within the times in which recounts can be called for?

What I’m saying is, didn’t they say that the date of the 7th cannot stand, not because of the constitution alone, but because there are other provisions in the statute that cannot be accommodated with sections—with the seventh day?

TRIBE: Exactly.

SOUTER: Yes.

TRIBE: And I guess to take a...

GINSBURG: And they said that twice. And I think that’s critical, if you add to that, that we read a decision of a state court in the light most favorable to that court and not in the light least favorable.

I suppose there would be a possibility for this court to remand for clarification. But if there’s two readings, one that’s questionable and one that isn’t, all of our decisions suggest that we read the one...

TRIBE: Especially, I think, Justice Ginsburg, when the odds that these conceivable federal problems are indispensable to this result are overwhelmingly negative. That is, it’s not as though one cannot explain the result this court reached in the most conventional, standard ways.

TRIBE: And the fact that...

SCALIA: Professor Tribe, I would feel much better about that resolution if you could give me one sentence in the opinion that supports the second of these supposed alternative readings, that supports the proposition that the Florida Supreme Court was using the constitutional right to vote provisions as an interpretive tool to determine what the statute meant. I can’t find a single sentence to that.

TRIBE: I think, Justice Scalia, I can do a little better than find a sentence. The entire structure of that part of the opinion, as Justice Stevens points out, would be incoherent if the Constitution was decisive. That is the highest law in Florida. Why bother with all the rest if that is anything more than an interpretive guide?

SCALIA: You would bother with it because, having decided very clearly what the statute requires, and finding no way to get around the firm date set, you say the reason it’s bad is because of the state Constitution. That’s how it’s written. Now they might have...

TRIBE: No, but, Justice Scalia...

SCALIA: ... tried it another way, but its seems to me they didn’t.

TRIBE: But they also say that the provision that reaches the result that conflicts with the authorized recounts was written in 1951, but in 1989 they wrote a provision that unmistakably created discretion.

And we haven’t yet discussed this provision also created, the provision that when the returns are filed late, it doesn’t say throw them away, it doesn’t say give them back, it says fine every member of the canvassing board $200 a day.

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