KOHL: But just to refer to two that were taken up without any reference from any lower court -- one was Youngstown Sheet and Tube, which was, you know, the ability of the government to seize a steel mill during a time of war.

And, of course, another one that I'm interested in your comment on is Bush v. Gore, in which the courts decide to directly insert itself into a presidential campaign. I'm interested in not what happened after they decided to do that, but the decision they made, in terms of its propriety, its impact on the court, the court's standing in the country.

You must have thought about it, I'm sure, a great deal when it happened.

KOHL: I'm sure you have an opinion on their decision to enter that case. And I think we'd like to know what that opinion is.

ROBERTS: Well, you mentioned first the Youngstown case and it's a category -- and I think perhaps the Bush v. Gore case, perhaps the justices concluded it fell into that category.

There are certain cases that don't come along all that often that are, by their importance, significant enough for the court to take. In other words, they don't fit the description of a conflict among the courts of appeals or an act of Congress held unconstitutional.

But they are, otherwise, sufficiently important that the court will grant review and take those cases.

Certainly, the Youngstown case was of that sort. It started out actually in the D.C. court. And the hearing was first there. And then the court granted (inaudible) decision by a president to seize the steel mills based on the Constitution.

That's an important enough issue. You want the Supreme Court to issue a final ruling on that.

On the decision in Bush v. Gore and the determination of whether to grant review in that case, again, that's not something that -- you don't know on what basis the justices make a decision to grant review. You just get an order that says review is granted.

In that case, you had the decision of a state court that apparently the justices thought should be reviewed. And, obviously, expeditious treatment was needed as I think it was in the Youngstown case as well. They're capable of moving expeditiously when an important matter requires them to do so.

KOHL: I asked you what your opinion of that decision was at that time.

ROBERTS: Well, that's an area where I've not been -- I've not felt free to comment whether or not I agree with particular decisions or...

KOHL: Well, it's not likely to come up again.

ROBERTS: Well, I do think that the issue about the propriety of Supreme Court review in matters of disputed electoral contests, it is a matter that could come up again. Obviously, the particular perimeters in that case won't, but it is a very recent precedent.

And that type of a decision is one where I thought it inappropriate to comment on whether I think they were correct or not.

KOHL: OK.

-- 
Rick Hasen 
William H. Hannon Distinguished Professor of Law
Loyola Law School 
919 Albany Street 
Los Angeles, CA  90015-1211 
(213)736-1466 - voice 
(213)380-3769 - fax 
rick.hasen@lls.edu 
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org