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Three United States Supreme Court Justices in Bush v. Gore would have held that the Florida Supreme Court's decision ordering a recount violated Article II Section 1's requirement that "each state shall appoint, in such Manner as the Legislature thereof may direct" electors for President and Vice-President. They reasoned that the Florida state court's "interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required" and thereby violated Article II, Section 1. Judicial interpretation can make new law and rob individuals or other parties of desired predictability and stability Despite the seeming affront to federalism, the paper argues that the three Justices were on firm ground in holding that the U.S. Supreme Court can review a state court's construction of state law in order to protect a federal right, just as the Court has done in the Contracts Clause and criminal fair notice cases (Bouie). Indeed, in those two contexts, the Court has asked whether state judicial pronouncements changed prior law. Moreover, there is sound reason to conclude that the Article II, Section 1 claim should be justiciable. Irrespective of the historical pedigree, however, the concurrence's application of the doctrinal principles is nothing short of startling. When the Court has reviewed state law decisionmaking in the Bouie and Contracts Clause contexts, it has only disputed state court construction of state law on rare occasions, and it has concluded that state court decisions made "new" law even more rarely. Through a mixture of fictions and judicial legerdemain, federal judges in the Bouie and Contracts Clause contexts have assiduously avoided concluding that state court decisions changed prior law. They have relied on a variety of fictions to conclude that the decisions under review were foreshadowed in some way, whether because of prior dicta or developments in other jurisdictions. Courts backed off enforcing doctrine in those two contexts for a number of reasons. First, drawing a line between interpretation and making law is notoriously slippery. Few benchmarks exist to determine when interpretation stops and lawmaking starts. Although the Florida Supreme Court decision was in no way dictated by precedent, it found support in the language of the text and seemed, at a minimum, plausible. The U.S. Supreme Corut has consistently failed to disturb far more questionable state court deicisions in the Bouie and Contracts Clause contexts. Second, federal courts retreated from full enforcement of federal guarantees in light of the respect owed state judiciaries. As they began to view state jurists with greater respect, there was less justification for scrutinizing state court decisionmaking so carefully. The concurrence's opinion, in contrast, flies in the face of the Court's frequent paens to the fundamental role of federalism in our system. Third, equating judicial interpreation with lawmaking provides incentive for disapppointed litigants to seek redress in federal court for their disagreement with state court interpretation of state law. The need for finality seems even greater in the election contest. And, finally, the more that we equate judicial interpretation with lawmaking, the greater restraints that society may impose on judges. After all, the Supreme Court's equal protection analysis in Bush v. Gore appeared to many as nothing less than judicial lawmaking. The lessons of history should have alerted the concurrence to the quagmire of active enforcement of the Article II, Section 1 directive - some constitutional rights are better left underenforced.

Judging Judging: The Problem of Secondguessing State Judges' Interpretation of State Law in Bush v. Gore