[EL] Bush I question

[Marty Lederman]

Well, the Court *expressly *stated that it was "declin[ing] at this time to
review the federal questions asserted to be present," so *that *can't be
the ground.  It apparently was, instead, that old standby--the "we're
vacating your judgment because it confused us" power.  (That is, after all,
what the Court said!)

I don't have my Hart & Wechsler with me at home, but I have a dim
recollection that Dick Fallon and Dan Meltzer did offer some sort of
justification for the vacatur ... .  (Or perhaps I'm confusing it with
something else.)

On Wed, Oct 28, 2020 at 12:56 PM Jonathan Adler <jha5 at case.edu> wrote:

> I get that argument, but I don't see how the Court has the authority to
> vacate a state court opinion if (as some seem to argue) it was not possible
> for the state court to have violated the applicable federal prohibition,
> and that requires the existence of a federal prohibition. Put another way,
> Bush I does not stand for the proposition that what the SCOFLA did violated
> the federal prohibition, but the decision and judgment must stand for the
> proposition that there is a federal prohibition of some sort that could,
> conceivably, be violated. At least that's how it seems to me, but I may
> still be missing something.
>
> ----
> Jonathan H. Adler
> Johan Verheij Memorial Professor of Law
> Director, Coleman P. Burke Center for Environmental Law
> Case Western Reserve University School of Law
> 11075 East Boulevard
> Cleveland, OH 44106
> ph) 216-368-2535
> fax) 216-368-2086
> cell) 202-255-3012
> jha5 at case.edu
> SSRN: http://ssrn.com/author=183995
> Blog: https://reason.com/people/jonathan-adler/
> Web: http://www.jhadler.net
>
>
>
>
> On Wed, Oct 28, 2020 at 12:42 PM Mark Scarberry <
> mark.scarberry at pepperdine.edu> wrote:
>
>> The standard view (cue Justin) that the Palm Beach County case says
>> nothing about how a federal issue would be resolved (not my view as my
>> earlier post noted) is that several (at least) of the Justices believed
>> that there would be a federal issue of some substance if the Florida S. Ct.
>> relied on the Florida Constitution rather than the statute, and that a
>> majority of the Court wanted to see whether there was such a federal issue
>> prior to deciding how such an issue would be resolved. I think there was
>> more than that, but I can't say that such a view is unreasonable.
>>
>> Mark
>>
>> [image: Pepperdine wordmark]*Caruso School of Law*
>>
>> *Mark S. Scarberry*
>>
>> *Professor of Lawmark.scarberry at pepperdine.edu
>> <mark.scarberry at pepperdine.edu>*
>> Personal: mark.scarberry at gmail.com
>>
>>
>>
>>
>> On Wed, Oct 28, 2020 at 5:05 AM Jonathan Adler <jha5 at case.edu> wrote:
>>
>>> Given some of the recent commentary on the Florida 2000 litigation, I
>>> was hoping someone could help with with a question I had about Bush I.
>>> Specificallt, on what basis (and authority) did the Supreme Court vacate
>>> the Florida Supreme Court's decision in Bush I if not on the grounds that
>>> there were constitutional limits on the extent to which the state judiciary
>>> could alter the work of the state legislature? Is not such a conclusion
>>> required by the Supreme Court's order and mandate?
>>>
>>> JHA
>>>
>>> ----
>>> Jonathan H. Adler
>>> Johan Verheij Memorial Professor of Law
>>> Director, Coleman P. Burke Center for Environmental Law
>>> Case Western Reserve University School of Law
>>> 11075 East Boulevard
>>> Cleveland, OH 44106
>>> ph) 216-368-2535
>>> fax) 216-368-2086
>>> cell) 202-255-3012
>>> jha5 at case.edu
>>> SSRN: http://ssrn.com/author=183995
>>> Blog: https://reason.com/people/jonathan-adler/
>>> Web: http://www.jhadler.net
>>>
>>>
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>>
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-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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