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Scholars search oral arguments for clues to how U.S. Supreme Court will decide election case

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WASHINGTON (CNN) -- Never predict how the U.S. Supreme Court would rule on any case, including the historic matter argued Friday involving a hung presidential election.

That was the view of constitutional law scholars who have long observed and practiced before the nation's highest court.

"One must never confuse the nature of the ultimate disposition just by listening to the questions," said William Van Alstyne, a constitutional scholar at Duke University's law school, who has been mentioned as a potential Supreme Court nominee.

graphic AUDIO

grapchi Gore attorney Laurence Tribe and Justice Sandra Day O'Connor discuss authority in the Florida state legislature

406/39 sec.
WAV sound

grapchi Supreme Court Justice Ruth Bader Ginsburg and Theodore Olson on the role of the ruling of Florida's state supreme court vs. the question of federal rights

659/60 sec.
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graphic VIDEO
Listen to the Supreme Court hearing (with CNN Radio commentary on who is speaking) (December 1)

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Part 4 | Part 5 | Part 6
(QuickTime, Real or Windows Media)

CNN's Burden of Proof reviews U.S. Supreme Court hearing (December 1)
Part 1 | Part 2
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graphic CASE FILE
• Reviewing the Vote: The U.S. Supreme Court reviews the Florida election case
• Who's Who: Court and lawyer profiles
• Legalese: A layman's guide to the election case
Virtual tour of the U.S. Supreme Court
graphic ALSO
U.S. Supreme Court justices question whether to intervene in contested presidential election
• Minute by minute: How the U.S. Supreme Court hearing will proceed
CNN's Charles Bierbauer: Case should help states reevaluate their election laws
• Legal analyst Greta van Susteren: No cameras, but lots of action
• Legal analyst Roger Cossack: High anxiety before the high court
Key election-related petitions and briefs filed with the U.S. Supreme Court.
(These require Adobe® Acrobat® Reader™)

Article III of the U.S. Constitution (FindLaw)
Oral arguments schedule (FindLaw)
Reply brief of Petitioner Bush (FindLaw)
Reply Brief of Respondents Gore and Florida Democratic Party (FindLaw)
U.S. Supreme Court brief filed by George Bush (FindLaw)
U.S. Supreme Court brief filed by Al Gore (FindLaw)
U.S. Supreme Court order agreeing to hear Bush v. Palm Beach County Canvassing Board
Bush petition for writ of certiorari to the U.S. Supreme Court, Siegel v. LePore (FindLaw)

More related documents

However, some scholars said it is sometimes possible to predict how a justice might rule based on the questions he or she asks during oral arguments.

Theodore Olson, a lawyer for Republican presidential nominee George W. Bush, and Laurence Tribe, an attorney for the Democrat Al Gore, presented oral arguments Friday before the Supreme Court in Bush v. Palm Beach County Canvassing Board.

The crux of the case was whether the U.S. Supreme Court must overrule the Florida Supreme Court, which allowed manual vote recounts and ordered Florida Secretary of State Katherine Harris to add those hand-recounted totals to the final tally.

Bush's legal team wants the U.S. Supreme Court to "vacate" the lower court ruling, which would make legitimate the November 14 vote total in Florida as opposed to the re-certified total Harris adopted on November 25.

Olson argued that the Florida Supreme Court overstepped its authority by, in effect, passing a new law that moved the November 14 deadline set by the state legislature.

But he came under sharp questioning from justices like Anthony Kennedy and David Souter, both of whom wondered out loud if the case even belongs in federal courts. And Justice Ruth Bader Ginsburg said the Florida Supreme Court must not be "impugned."

Given that the high court has long been adamant about preserving the authority of the courts, those two views from a diversity of justices suggest that they might rule against Bush in order to preserve the power of the Florida court to interpret state elections laws, said Victor Williams, a constitutional law professor at Catholic University.

"Ginsburg will raise the judicial independence flag and say that it flies high in Tallahassee just as it does in Washington D.C.," he said. "I don't think they will overturn the Florida Supreme Court, though I believe the Florida Supreme Court was wrong."

"At least a majority will not undercut their black-robed" colleagues in the Florida capital, he added.

Van Alstyne said a number of legal scholars were surprised that the court accepted the case because the Bush argument was not firmly rooted in the U.S. Constitution or federal laws.

So it is possible that after the arguments, the justices could quickly reject the case as undeserving of their consideration, he said.

While many scholars said that was a possibility, they said the court would issue an opinion because of the importance of the case.

Peter Shane, a constitutional law professor who currently teaches at the University of Pittsburgh and Carnegie Mellon University, said he would be surprised if the court issues a unanimous decision judging from the nature of the questions.

Unanimous decisions signify that the court is speaking with one unequivocal voice, he said.

Broadly speaking, Justices Antonin Scalia, Sandra Day O'Connor, Kennedy and Chief Justice William Rehnquist seemed worried that the Florida court might have overstepped its constitutional authority by usurping the power of the state legislature to decide how to choose electors, said Joel Gora, a constitutional scholar at the Brooklyn Law School.

Justice Clarence Thomas remained silent during the 11/2 hours of oral arguments Friday.

But making a judgment from the intensity of the questioning could also be deceptive, said Gora, one of the lawyers involved in a landmark high court campaign-finance case in the 1970s and a former attorney with the American Civil Liberties Union.

"The justices often ask the hardest questions to the side they are in sympathy with so that they would get the strongest answers," he said.

Mary Cheh, a constitutional scholar at George Washington University's law school, said the high court ruling will not decide the 2000 presidential election.

That is because of the narrow nature of the questions the court considered, she said. Gore is still contesting the results of the statewide tally, and that matter could well end up -- again -- with that state's highest court, she said.

U.S. Constitution, Article II
14th Amendment to the U.S. Constitution
1st Amendment to the U.S. Constitution
United States Code, Title 3, Section 5

Minute by minute: How the U.S. Supreme Court hearing will proceed
November 30, 2000
Gore team asks Florida Supreme Court to speed recount
November 29, 2000
Bush, Gore U.S. Supreme Court briefs address constitutional questions
November 28, 2000
Vote certification does not stop legal fight
November 27, 2000
Constitutional scholars surprised by U.S. Supreme Court decision to hear Florida election case
November 24, 2000

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