[EL] Bush I question

[Jonathan Adler]

The Court's statement that it was "declin[ing] at this time to review the
federal questions asserted to be present" need mean nothing more than "we
are declining to decide whether or not anything the SCOFLA did violated
federal law," and is entirely consistent with the prermise -- which, again,
I think the judgment requires -- that there was a federal prohibition that
could, conceivably be violated. After all, if the SCOFLA did not violate
federal law, then there is no federal question present.

To state this claim is not to say anything about what a state court would
need to do to violate the federal prohibition, just that there is a
prohibition that could, conceivably, be violated (such as by a state court,
say, announcing that it was rewriting the state's entire election code
because reasons).



----
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 1:11 PM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> 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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>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
>
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