The Supremes Pull a Hamlet
Forty minutes into this morning's oral argument in the much-awaited Texas seat belt case— Atwater v. City of Lago Vista, the first two rows of the press gallery are quietly interrupted by a court flack, who frantically distributes a sheaf of slip opinions to the reporters. Although no one can recall an opinion being circulated in this way, this is how word filters out that the decision in Bush v. Palm Beach County has come down. The room hemorrhages reporters.
Only the poor reporters in the cheap seats—who haven't been passed notes—stay to hear the end of the seat belt argument. As the press all-stars decamp, the judges deflate. Later, one cheap-seat reporter who stuck out the whole argument tells me the justices stopped asking counsel questions altogether after the exodus.
In the pressroom, reporters are either attempting to understand the opinion or huddled around someone who actually does understand the opinion. Suddenly little constitutional study groups spring up all over the room. "What's per curiam?" "Why didn't they read it from the bench?" Word then wings around that CNN just called it a massive victory for Bush. Everyone rereads the opinion. We call our editors.
The court's opinion was a magnificent piece of self-legitimizing: They get to look supreme—by teeing off on the Florida Supreme Court. They manage to appear paternalistic and generous—by giving the Florida court a second crack at getting the law right. Best of all, they pull off a unanimous opinion (per curiam means by the court as a whole, rather than by a single justice, and such orders usually come without extended discussion or debate).
If you did what I learned to do in law school—and what some of the trigger-happy reporters did today—you read the last line of the slip opinion first. You saw that the court vacated the Florida Supreme Court opinion and told the marshal standing next to the door that Bush won. This, of course, proves to be untrue if you read the rest of the opinion. It shows once again that it's hard to reconcile "law" with "breaking news."
The real news is that the high court decided not to decide the Bush case. They decided that the Florida Supreme Court probably ignored federal law in relying on their equitable powers under the Florida constitution. But they didn't reverse the Florida court. Instead, they seem to have taken a line from every single justice's bench memo and grafted it into a finish-your-homework/no-soup-for-you scolding. Here's what I suspect was lifted from Scalia's memo: "There are expressions in the opinion of the Supreme Court of Florida that may be read to indicate that it construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, Sec 1, cl.2, 'circumscribe the legislative power.' " I imagine Ginsburg wrote, "As a general rule, this court defers to a state court's interpretation of a state statute."
Add to that some lengthy block quotes from either the United States Code or the U.S. Constitution, and you have a seven-page order, absent sound and fury, and signifying that the royalty on Maryland Avenue Northeast don't think much of their redneck cousins in Tallahassee.
A possible explanation for the punt: My Smart Lawyer Friend Sean calls to observe that one general principle of Supreme Court decision-making is that federal issues not raised in the state court are procedurally barred from review in the high court. Since the Bush team never fully argued the federal claims in the state Supreme Court, the Supremes cannot find that the Florida court made an error. Scalia has to wait for the Florida court to make an error before he can spank them. So the court unanimously sends it back to Florida, where they can get it wrong properly
In the Texas seat belt case, the court will have a tougher time dodging the issues, and here's why: Every Big Case that works its way up to the high court has a shadow case, the teensy weensy dispute between two constitutionally insignificant parties—call them the Ernesto Mirandas—who really don't much care about reshaping the legal landscape but mostly just want to get out of jail.
Imagine it's a sunny spring day in Texas, and you're driving your kids home from soccer practice. It's 1997, so the words "soccer mom" still strike you as clever and laden with social significance. Your 4- and 6-year-olds are bouncing around the cab of your truck. Suddenly, you're pulled over by the weirdly hyperactive officer Bart Turek of the Lago Vista law enforcement community. The cowboy cop has already stopped you once, several weeks back, for the same offense. Except last time, little Mac really was belted in. For some reason, for Turek, this time its personal. You are busted. Quite literally.
Dahlia Lithwick writes about the courts and the law for Slate.


