Jeffrey Rosen is a law professor at George Washington University, and legal affairs editor at the New Republic Magazine. Stuart Taylor is a legal affairs columnist for the National Journal. What we didn’t tell our viewers which was that we insisted you take a speed reading course because these just came out.

But, Stuart, the gist of Bush’s appeal was that the Florida Supreme Court had overreached when it extended the vote- counting deadline down there. What do you think were the strongest arguments that the Bush brief makes in support of that?

STUART TAYLOR: Just to give the gist a little more fully, the claim is that the Florida Supreme Court violated federal law, both an act of Congress from 1887 that was passed after the Hayes-Tilden problem, and Article II of the Constitution violated federal law by changing Florida law after the November 7 election in an effort by the Gore camp to change the outcome of the election, which the Florida state Supreme Court, the Bush camp argues, basically went along with.

Now the strongest points, I think, are the state court did say in its opinion that the state’s legislation on this was hyper-technical, and the seven-day deadline for completion of hand counts and the certification of the election results just seemed sort of silly to them and didn’t work in this instance because you needed more time for hand counts, and therefore, they were going to junk that and write their own rules.

Now, the… this is called an act of judicial legislation by the Bush brief. And they cite specifically this 1887 law which says that any dispute should be resolved under state, "laws enacted prior to" , election day. If this is a presidential election, part of their case is federalism is not the issue here. This is a presidential election. We have a specific act of Congress passed to regulate presidential elections to prevent precisely the kind of thing the Florida Supreme Court did. So don’t preach to us about federalism.

They also said that the Florida Supreme Court’s violated the Constitution of the United States which assigns to the state legislature, not the state courts, the power to determine how electors are made.

And the last, I guess, point I’d make the rhetoric behind their thing was well summarized in a New York Times op-ed that I’ll take the liberty of reading from. They called it "a bold example of judicial activism. It says the Bush lawyers could argue plausibly that activists, Democratic judges changed the counting rules in the middle of the game only after it was obvious that the Democratic candidate needed dimpled ballots to win, and that this would taint any… taint the legitimacy of Gore victory." That op-ed was written by my friend Jeff Rosen.

MARGARET WARNER: What would you add to the Bush brief in terms of what are the main points or you can respond to Stewart as well.

JEFFREY ROSEN: I think Stuart has summarized the Bush argument well. The Gore argument is one that I’m happy to summarize because it’s one that I think even those who think that I did that the Florida Supreme Court may have been a little precipitous in imposing a firm deadline and in arguably changing the counting rules. Even so, Gore argues, the Bush argument is implausible.

Here is Gore’s strongest point. He says this is not an act of judicial legislation by the Florida Supreme Court. Even if you disagree with it, as I did — the court was doing what courts do all the time. They take competing parts of difficult statutes, they reconcile ambiguities and they attempt to come up with a plausible way of harmonizing all this. If the Supreme Court agrees with Bush that the Florida Supreme Court legislated merely by engaging in acts of interpretation, Gore claims, this would call into question all sorts of act of state law that courts do all the time. And this would be impossible to reconcile with federal court’s traditional deference to state courts on questions of state law, so that’s their first big point.

The second point they make is also quite powerful. They say the federal law in question cannot be violated by a state court. It was a law passed in the wake of the Hayes-Tilden debacle when — amazing the analogy is so precise — two competing slates of electors from the state of Florida, one endorsed by the Republican canvassing boards, the other by the Democratic legislature. Congress ended up voting on the two. In the wake of this debacle a law was passed saying that we want to make sure that this is decided according to previously enacted laws; we don’t want Congress stepping in and making a political decision.

So says Gore as long as the state law is being interpreted by ordinary judicial or other methods or proceedings as the federal law requires, then any result has to be conclusive on Congress. Congress has to respect that, regardless of any dispute with the legislature. Now, the most interesting question is one that’s almost not raised by this brief. It’s raised by the Florida legislature itself. But I’ll tell you about that in a moment.

MARGARET WARNER: Your assessment of the Gore argument.

STUART TAYLOR: Well, since he’s given the strengths of it very well, I’ll try the weaknesses. Yes, it’s true that courts do judicial activism all the time. In fact, the Supreme Court has done quite a bit itself. And, therefore it’s not going to be very easy to argue to the United States Supreme Court that, you know, we can’t be having any judicial rewriting of legislation. That wouldn’t sit well with them. It would particularly with the more liberal members. They do do it all the time.

But here we have a unique situation in a unique statute, this 1886 post-Hayes-Tilden statute. It’s never been interpreted in the history of the United States. The situation will probably never occur again in the history of the United States. And it is a presidential election. So if this was a county sheriff election in Florida, there would be no basis for the federal courts to intervene, fine. This is a presidential election. We have a very specific law. Mr. Gore hasn’t given us any reason it shouldn’t be enforced. Second, hypothetically, let’s suppose that the Florida Supreme Court — and the Busheys aren’t saying they did this — let’s suppose they just transparently rigged the election by adopting an absolutely indefensible so- called interpretation of state law that everybody knows is bogus such as we think more people wanted to vote for Gore than Bush so Gore won. I think the Gore argument is… comes very close to saying, "so be it." The U.S. Supreme court has no power to do anything about it.

MARGARET WARNER: You disagree.

JEFFREY ROSEN: The Gore argument explicitly says if the Florida Supreme Court were in fact to clearly enact a new procedure, if the state court were to appoint electors itself, then this would be reviewable ultra veras. But in this case Gore says it would be an outrage, such a violation of ordinary, simple principles of interpretation that this is an easy case, says Gore for the federal court to intervene.

In some ways — and they’re supported by this in some ways by the argument of the Florida legislature. The Florida legislature has filed a separate brief. They make a very interesting argument. They say, Supreme Court you were wrong to take this case. You acted precipitously in jumping in, just as I argued in that op-ed when I said the Justices should stay out of it. The Florida legislature says this is a non-justaciable political question. It’s ultimately up to Congress in the case of competing electoral slates to choose. Therefore, the Florida legislature says dismiss the case as non-justaciable… and let Congress decide. Gore would agree with that part of the argument. However there’s one wrinkle. This is actually where the action is going to be over the next couple of days. We know that much of this case is not terribly significant because even if Bush wins, the contest will proceed and even if Gore wins he still has to win the contest.

MARGARET WARNER: While these other legal challenges go on…

JEFFREY ROSEN: Precisely. So the Supreme Court case, ironically the Justices rushed in precipitously. It may not be central to the outcome of the election. But there is one central dispute, and that may be between the Florida legislature and the Florida Supreme Court.

There are some people who are already advising the Florida legislature, indeed the people who signed the Supreme Court brief, to act and appoint its own slate of electors now. They’re saying even if the Florida Supreme Court ultimately endorses a set of Gore electors in a contest, the Florida legislature can override them. The central question — and this is an interesting question of technical interpretation– is whether or not…

STUART TAYLOR: Teacher.

JEFFREY ROSEN: This is great stuff.

STUART TAYLOR: Teacher, teacher, my turn.

MARGARET WARNER: He wants back in here.

JEFFREY ROSEN: Let me finish the argument because I’m laying it on the table. The question is, should the…should the state Supreme Court or the legislature have the final word? And Gore says until December 12, the federal statute clearly leaves that up to the state Supreme Court. After December 12 if the thing isn’t resolved, then the legislature can step in.

STUART TAYLOR: Now before Jeff went off on all those interesting professorial digressions, it seems to me he conceded a very important part of the Bush argument. He conceded that if the Florida Supreme Court had done something outrageous enough that then it could be invalidated by the Supreme Court.

MARGARET WARNER: A higher court.

STUART TAYLOR: So the question is not whether the higher court can do it or should do it. The question is how outrageous does this have to be and how outrageous was it? And this gives the Bush people plenty of running room to say it was exactly as outrageous as it needed to be for you guys to overturn it.

MARGARET WARNER: In what circumstances does the U.S. Supreme Court essentially reverse state Supreme Courts when they’re interpreting state laws? Isn’t that fairly rare or not?

STUART TAYLOR: Almost never. But I think the answer to that from the Bush side is this statute here has never been interpreted for. It’s unique. We’re talking about a presidential election under rules determined by the state, and Congress wanted to make sure that the state courts didn’t hijack a presidential election. Second, it’s not unheard of for them to second guess state interpretations. Of course they strike them down as unconstitutional all the time in to ex post facto jurisprudence as to whether you’re punishing somebody for a crime after he did what it is, sometimes if the state courts say, oh, no, no problem because the state law didn’t real he’ll change, the U.S. Supreme Court will come along and say oh, yes it did.

MARGARET WARNER: Do you think the ultimate decision, Jeffrey Rosen, will depend ultimately on just an interpretation of this old law, this 1887 law, or are there broader issues at stake here? I mean, is there something broader that is even bigger than this presidential election?

JEFFREY ROSEN: There is this fundamental large broad question about what exactly judges do. We heard on the campaign trail George Bush criticizing judges for making the law not interpreting it. This remarkable claim before the U.S. Supreme Court that a state court judge tried to interpret a law in ways reasonable people can reject is itself an act of legislation. For the Supreme Court to accept that claim, to second guess the state Supreme Court in the interpretation of its own law would have broad consequences for ordinary statutory interpretation which is what the Supreme Court does all the time. Now I should say I didn’t endorse this Gore argument that the U.S. Supreme Court should be able to second guess a clearly outrageous act of the Florida Supreme Court. I think I agree. Here’s the….

STUART TAYLOR: That was your assignment.

JEFFREY ROSEN: But here’s the way out of it. The way out of it is for the U.S. Supreme Court really to say that would be a political question. Now it’s up to Congress decide. This statute passed in the wake of the Hayes-Tilden debacle was inspired by a wrongheaded decision to appoint Supreme Court Justices and Congressmen and Senators to judge the plausibility of Florida’s election returns.

STUART TAYLOR: I’m so confused that I’m going to have to make a general point, rather than respond to it.

MARGARET WARNER: I’d like to ask you a general question which is the same question I started with with Jeffrey. Do you think it will ultimately get down to this law or that are there larger issues with broader ramifications involved in this decision?

STUART TAYLOR: Oh, yes. I think the way the Supreme Court is going to start is after a quick look at all these laws, they’re going to say, are the Florida courts trying to railroad this election, whether because they have an odd way of looking at their own laws, or because they’re trying to help out Al Gore? And if they are, how do we… what do we do about it? I think that’s sort of the first thing you think about. And the answer to that may be, no, the Florida courts are doing fine.

MARGARET WARNER: But does it have ramifications beyond this….

STUART TAYLOR: Case?

MARGARET WARNER: Yes, presidential election.

STUART TAYLOR: No. If I could write an opinion for the Supreme Court ruling either way in this that would never be cited again in any other case as relevant to anything — if I were trying to rule for Bush, I would be very sure I did that because Jeff’s right. Going to the … you know, going to the courts and saying, hey, you guys can’t legislate. Well, they like to legislate. You have to sort of say, you guys can’t legislate this time.

MARGARET WARNER: All right. And we’ve got to leave it there. Thank you both very much.

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