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LAW WISE     [Kansas Bar Foundation logo]

Published by the Kansas Bar Association
Editor: Crystal Marietta, Attorney at Law, Pittsburg
Coordinators: Ron Keefover, Kansas Supreme Court and Janessa Akin, Kansas Bar Association

November 2004

Greetings from the Kansas Supreme Court and the Kansas Bar Association. This is the third edition of Law Wise for the 2004-2005 school year. The theme for this edition of Law Wise is “Post-Election Headquarters: What Roles Do Judges Play?”

In this issue:

Calendar of Events [calendar graphic]

2004

February 11. . . . . . . . Mock Trial Registration Deadline
March 4-5 . . . . . . . . . Regional Mock Trial Tournament
April 1-2. . . . . . . . . . . State Mock Trial Tournament
May 1. . . . . . . . . . . . . Law Day
May 5-7 . . . . . . . . . . . National Mock Trial Tournament

How are Judges Selected?

State Court Judges

The Supreme Court is Kansas' highest court. It consists of seven justices, each of whom is selected by the governor. The governor appoints from a list of three qualified individuals submitted by the Supreme Court Nomination Commission. After the first year in office, a justice is subject to a retention vote in the next general election. If a majority of electors vote to retain the justice, he or she remains in office for a term of six years. Justices are subject to a similar retention vote at the conclusion of each term.

The justice, who is senior in terms of continuous service is designated by the Constitution as the chief justice, unless he or she declines, or resigns the position. The chief justice exe rcises the administrative authority of the court.

The 12 Court of Appeals judges are selected in the same manner as Supreme Court justices, but serve terms of four rather than six years. One of the Court of Appeals judges is appointed chief judge of the Court of Appeals by the Supreme Court.

Judges of the district court are selected in one of two ways, either by merit selection and retention vote, or bipartisan ballot. In some districts, the voters have approved nonpartisan merit selection of judges. In other districts, judges run for office on a partisan ballot. Judges serve four-year terms.

In merit selection districts, when a vacancy in a district judgeship occurs, a judicial nominating commission interviews candidates and recommends two or three persons to the governor for consideration. The governor then appoints one of these as a judge to fill the vaca ncy. When there is a vacancy in a district magistrate judgeship, the district judicial nominating commission selects a candidate to fill the vacancy. Judicial nominating commissions are made up of lawyers and non-lawyers who live in the district.

Federal Court Judges

United States Supreme Court

The Supreme Court consists of the chief justice of the United States and such number of associate justices as may be fixed by Congress. The number of associate justices is currently fixed at eight (Title 28 of the United States Code §1). Power to nominate the justices is vested in the president of the United States, and appointments are made with the advice and consent of the Senate. Article III, §1, of the Constitution further provides that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

United States Courts of Appeals

The 94 U.S. judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by the Court of International Trade and the Court of Federal Claims. Kansas is a part of the 10th Circuit.

United States District Courts

The United States district courts are the trial courts of the federal court system. Within limits set by Congress and the Constitution, the district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters. There are 94 federal judicial districts, including at least one district in each state, the District of Columbia, and Puerto Rico. Three territories of the United States -- the Virgin Islands, Guam, and the Northern Mariana Islands -- have district courts that hear federal cases, including bankruptcy cases.

United States Bankruptcy Courts

Federal courts have exclusive jurisdiction over bankruptcy cases. Bankruptcy cases cannot be filed in state court. Each of the 94 federal judicial districts handle bankruptcy matters. The primary purposes of the law of bankruptcy are: (1) to give an honest debtor a "fresh start" in life by relieving the debtor of most debts, and (2) to repay creditors in an orderly manner to the extent that the debtor has property available for payment.

Portions of this article can be found at http://www.supremecourtus.gov/about/briefoverview.pdf and http://www.uscourts.gov/.

column Oral Arguments Live column

Beginning with October’s oral arguments, the Supreme Court is making available live audio of all cases argued before it via the Court's Internet site, www.kscourts.org.

Chief Justice Kay McFarland said the live audio stream is a continued effort to make the Court's hearings as widely accessible as possible. An archive of the arguments on the Court Web site also will be maintained throughout the year so that persons unable to listen as the cases are argued may tune in later at their convenience.

The Supreme Court first used the Internet for broadcast of an oral argument on Aug. 30 when both an audio and a video stream of arguments on the constitutionality of the state's school finance act were transmitted from its courtroom. The video was provided by representatives of the state's public television stations and made available through the Web sites of the Kansas Judicial Branch and Kan-Ed Live!, an Internet site maintained by the State Board of Regents.

The Court does not have the equipment or personnel available to produce video broadcasts of its cases, but can make the audio stream available through an existing sound system from the courtroom.

"We believe it important that citizens have the opportunity to take advantage of this technology to hear first-hand the matters that are argued before the Court," the Chief Justice said. "Even more, those whose appeals are being argued can tune in and listen to their attorney's presentations and any questions by the justices without having to drive to the Judicial Center," she said.

The Supreme Court was among the first appellate courts in the country to routinely post its decisions on the Internet and has been doing that since the mid-1990s.

Notes About This Month’s Lesson Plans
The following lesson plans are from the 2000 election, but have been heavily discussed with the anticipation of a close presidential race this year. On election night, it certainly looked as though Ohio might become the Florida of four years ago and many were speaking about the Supreme Court’s intervention in that election. The article/handout for each lesson plan is from the year 2000, so please keep that in mind when using them.

Lesson Plan #1:  
Justices For All:
The Role of Supreme Court Nominations in the Presidential Election

By: Kama Einhorn, The New York Times Learning Network

Grade Level: 6-8, 9-12

Overview of Lesson Plan: In this lesson, students examine the role of Supreme Court justices in the American political process. Students will research the qualities of the current Supreme Court justices and write opinion papers evaluating the current justices and recommending future nominations.

Suggested Time Allowance: 45 minutes to 1 hour

Objectives: Students will:

  1. Draw on what they know about the Supreme Court to list qualities they think justices should possess.
  2. Develop an understanding of the selection process of Supreme Court justices and its role in the upcoming presidential election by reading and discussing "Who Will Name the Next Supreme Court Justice?" (See Handout #1)
  3. Create profiles of current Supreme Court justices in order to place each figure in political and historical context.
  4. Compare current justices against their original views of what a justice should be, and determine how presidential candidates George W. Bush or Al Gore would view each justice (or recommend his or her replacement) based on current political issues.

Resources/Materials:
--student journals
--paper
--pens/pencils
--classroom blackboard
--copies of "Who Will Name the Next Supreme Court Justice?" (one per student)
--research materials on the Supreme Court and the current justices (current periodicals and encyclopedias, computers with Internet access)
--large pieces of poster board or construction paper (nine pieces)
--markers

Activities/Procedures:

  1. WARM-UP/DO-NOW: In their journals, students respond to the following questions (written on the board before class): "What do you know about the Supreme Court and the types of cases over which they preside? Based on what you know about the Supreme Court, list the qualities that you feel an ideal Supreme Court justice should possess." After students free-write for five minutes, discuss their ideas as a class. Make a list on the board of their responses. What generalities does everyone agree upon, and why?
  2. As a class, read and discuss "Who Will Name the Next Supreme Court Justice?," focusing on the following questions:
    a. Why did the justice with whom the students visited tell them to "vote carefully?" What do you suppose that means? Why do you suppose the Justice's name is not mentioned?
    b. What are "interest groups on the left and right?"
    c. What role does the president play in the appointment of justices to the Supreme Court? What else must happen in order for a nominee to become a justice?
    d. What is Al Gore's hope and his message to the American public regarding the Supreme Court's role in the upcoming election? What are the conservatives' intentions and message?
    e. On what two issues are the Supreme Court likely to decide within the next presidential term?
    f. What is a "swing vote?"
    g. Why do you think the Supreme Court is generally not a top concern for voters? How do "the most loyal Democratic or Republican base voters" differ from other voters?
    h. Why is there an "unspoken rule" that Justices do not retire in an election year?
    i. What does Senator Arlen Specter say about the current status of the justices? For what voting group does he make a case? Why does the article call this group "highly unlikely?"

  3. Divide students into nine groups. Assign each group one of the current Supreme Court justices (Stevens, Rehnquist, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer). Have the groups representing Stevens, Rehnquist, and O'Connor sit apart from the other groups, reminding the class that these three justices may be retiring within the next presidential term. Using all available classroom resources, students profile their assigned justices and create a poster presenting the individual to the rest of the group. Research and posters should include the following information (written on the board for reference):
    --Year of appointment;
    --President (and president's political party) who appointed justice;
    --Landmark rulings; and
    --Position on current issues (abortion, health care, school choice, etc.).
    Students should present or display their finished posters upon their completion of them.
  4. WRAP-UP/HOMEWORK: Using the information gathered about his or her group's assigned justice, each student examines his or her original journal ideas about the ideal qualities of a Supreme Court justice. How does the justice researched in class compare? How would George W. Bush or Al Gore feel about this justice based on his political views? (Students should conduct brief research on Bush and Gore's political agendas and views on the major campaign issues.) Each student then writes a statement of opinion as George W. Bush or as Al Gore, describing this presidential candidate's views of the justice researched in class. Statements should conclude with a description of the type of person whom this candidate may like to see as a replacement for one of the possibly retiring justices. Students should share these writings in a future class.

Further Questions for Discussion:

  1. If you were of voting age, what do you think your most important considerations would be in terms of deciding for whom to vote?
  2. Why do you think the Supreme Court has no term limits and no forced retirement?
  3. What do you think it is like for Thurgood Marshall to be the first African-American in the Supreme Court, for Sandra Day O'Connor to be the first woman justice, or for Louis Brandeis to have been the first Jewish justice? What other groups do you think should be represented in the Supreme Court and currently are not?
  4. Do you think it is fair for a president to "pack the court" with justices that share his political views? Why or why not?
  5. Consider the nominations of Clarence Thomas and Robert Bork. Why do you suppose the personal character and past of candidates are examined or challenged? Do you think a candidate's personal life should affect his or her nomination for Supreme Court justice (or for any other political position)?

Evaluation/Assessment:
Students will be evaluated on journal entries, participation in class discussions, creation of research-based posters profiling each Supreme Court justice, and written "presidential opinion" statements.

Extension Activities:

  1. Research a landmark Supreme Court case, such as Roe v. Wade, Brown v. Board of Education, or Lemon v. Kurtzman. Write a news report as if from the day of the decision on the case, detailing which justices were for or against the final decision, and what the political impact might be.
  2. Write a letter to one of your state's senators or representatives expressing your views on one of the issues before the Supreme Court today. Use recent related articles from The New York Times to inform yourself of the perspectives on the issues and the precedent set by prior cases.
  3. Choose a landmark Supreme Court case and create a timeline or flowchart explaining how the case reached the Supreme Court. Which courts did it have to go through in order to make it to the highest court in the country?
  4. Interview an adult about a landmark Supreme Court case from the past, or their memories of important moments in Supreme Court history.

Lesson Plan #1: Handout #1: Who Will Name the Next Supreme Court Justice?

WASHINGTON (May 22, 2000)-- When David M. O'Brien, a government professor at the University of Virginia, took his students on a tour of the Supreme Court recently, they ended up in a private question-and-answer session with a justice who abruptly turned to presidential politics. He blurted out several hot-button issues involving federalism, and said the future composition of the court would dramatically affect the outcome of those cases.

"Vote carefully," the justice, a Republican appointee, implored the students assembled in a stately white oak conference room.

To this justice, and to interest groups on the left and the right, the 2000 presidential campaign is not so much about whether Al Gore or George W. Bush makes it to the White House. It's about whom Mr. Gore or Mr. Bush would put on the Supreme Court, where vacancies are likely, if not in the next four years, then certainly in the next president's potential second term. Three of the nine justices are age 70 or older.

In just about every speech, Mr. Gore warns that religious conservatives like Pat Robertson and Jerry Falwell would ratify prospects for the bench in a Bush administration. His advisers were emboldened last week when the court, in a 5-to-4 ruling, overturned parts of the Violence Against Women Act, in a rebu ke to Congress' efforts to use interstate commerce rules to preempt state powers. That ruling, they said, would ga l vanize women who feel they have been left more vulnerable to gender-motivated violence.

Conservatives are just as determined to make the court a high profile issue. As the Christian Coalition put it in a memorandum to its members, "The stakes of this first election of the new millennium are extremely high: three Supreme Court judges." While that sounds like hyperbole -- and, indeed, makes for successful fundraising appeals -- in this case it may be true. The next president's most lasting lega cy could be the Supreme Court, which during the next presidential term will probably decide the constitutionality of school choice and late-term abortion.

Vacancies will be all the more important because the court now is as riven over the major issues of the day as is the House of Representatives across the street. The president also can stock the lower federal courts with judges to his liking.

Yet for all the breathless warnings on both sides, there is no evidence that voters think about the Supreme Court when they pick a president. The subject is never cited on a list of top concerns of voters, which typically include education and health care. Instead, campaigns have traditionally made the court an issue to help turn out the most loyal Democratic or Republican base voters -- but not to attract independent and swing voters who will decide the election.

Mocking a reporter's question about the relevance of the Supreme Court in November, Stanley Greenberg, a Democratic pollster, said, "The American people are hanging on the 5-4 majority and the federalism issue! In focus groups they talk about it all the time!"

Mark Mellman, another Democratic pollster, explained, "We've never seen it being important. Everybody raises it because the political cognoscenti believe it should be important -- and they just can't believe that it's not."

Perhaps it is a reach to expect voters to elect a president based on an imponderable: he may or may not appoint new justices, who would then deliberate on issues that have yet-to-be determined.

Only infrequently, when there is a drama like the nomination of Clarence Thomas in 1991 or the failed nomination of Robert H. Bork in 1987, does the public pay attention. With the most celebrated exceptions of Roe v. Wade, the 1973 ruling that legalized abortion, and Brown v. Board of Education, which in 1954 paved the way for school desegregation, it is difficult for people to translate their vote for president into how the Supreme Court might alter their lives.

"If Bush or Gore says, 'Vote for me because in 2015, Medicare or Social Security will be in better shape,' I don't think that's going to motivate a lot of voters because of the lack of immediacy," said Stuart M. Benjamin, a professor at the University of San Diego School of Law, who was a clerk for Justice David Souter. "That, in effect, is what voters are being asked to do with the Supreme Court."

Recognizing that the court carries little political weight with most voters -- and perhaps that his views could put off the moderates he will need in November -- Mr. Bush never raises the subject. When asked, he reassures conservatives by suggesting that his nominees would be "strict constructionists," uncomfortable with Roe v. Wade, though he has insisted he would not administer a litmus test to make sure his running mate shares his anti-abortion position.

Unlike Mr. Bush, Mr. Gore has not been timid about saying he would pick justices who share his pro-choice views.

Even President Clinton weighed in the other day. "If they get two to four appointments on the Supreme Court," he said, "I think Roe v. Wade will be repealed and a lot of other things that have been a part of the fabric of our constitutional life will be gone."

The hope among Democrats is that they might turn the court into an issue that goes beyond their party base, and draws away moderates who are intrigued by Mr. Bush. There is a possibility for the court to be more at the fore in this campaign because in the next several weeks it is expected to hand down decisions on a series of controversial issues: federalism, partial birth abortion, gays in the Boy Scouts and a challenge to the Miranda warning, which requires police to advise suspects of their rights before beginning an interrogation.

Ronald A. Klain, a former chief of staff to Mr. Gore and the member of the White House counsel's office who ran the selection process of Justice Ruth Bader Ginsbu rg, refused to concede that voters will be indifferent to court rulings like the one last week that invalidated a central provision of the Violence Against Women Act.

"A lot of swing voters in this election are moderate women who care about their lives and their rights," Mr. Klain said. "Whether the Supreme Court thinks that Congress has the power to enact a statute to protect them from hate crimes will be an important issue to them."

Determined not to politicize the court, justices have an unspoken rule that they do not retire in an election year (unless of course, mother nature leaves them no choice.) And, if possible, they often try to stay put until the president who can replace them is of the same party as the one who appointed them. It may well be that none of them will budge over the next four years.

Still, after November, there is the possibility for retirements: Justice John Paul Stevens, 80, is the oldest member of the court; Chief Justice William H. Rehnquist is 75, and Sandra Day O'Connor is 70.

"Clarence Thomas is good for another 50 years," Senator Arlen Specter, a Pennsylvania Republican on the Judiciary Committee, said of the youngest justice, who is 51. "But you've got Rehnquist and Stevens and O'Connor who are along in years."

In making the case for the significance of the court as an issue in November, Mr. Specter went so far as to construct a new, highly unlike l y, American voting bloc. "The Supreme Court may be important with the intelligentsia," he said. "But that would be, perhaps, a critical swing vote."

This lesson plan and the corresponding handout can be accessed at http://www.nytimes.com/learning/teachers/lessons/20000522monday. html.
© The New York Times Company.

Lesson Plan #2:  
Down for the Count?
Exploring the Supreme Court Decision to Halt the Florida Recount

Author: Elyse Fischer, The New York Times Learning Network

Grade Level: 6-8, 9-12

Overview of Lesson Plan: In this lesson, students will assess, from various perspectives, the United States Supreme Court ruling to stay the recount of Florida votes in the 2000 presidential election.

Suggested Time Allowance: 1 hour

Objectives: Students will:

  1. Share their thoughts on the post-Election Day events of the 2000 presidential elections in the United States.
  2. Explore the Supreme Court decision to halt the count in Florida and its possible ramifications by reading and discussing "Supreme Court, Split 5-4, Halts Florida Count in Blow to Gore." (See handout #1)
  3. Analyze the text of the Supreme Court decision to stay the recount of Florida votes, the dissent, and the response to the dissent; assess the text from the perspective of an assigned persona (a Supreme Court judge, a presidential candidate, or a voter).
  4. Synthesize the information they have learned to write letters from their assigned persona to another with a different perspective.

Resources/Materials:
--student journals
--pens/pencils
--classroom blackboard
--paper
--copies of "Supreme Court, Split 5-4, Halts Florida Count in Blow to Gore" (one per student)
--copies of "Supreme Court's Decision to Halt the Florida Recount" (one per student) Copies of "Supreme Court's Decision to Halt the Florida Recount" can be found at: http://www.nytimes.com/2000/12/10/politics/10STEX.html.
--classroom reference materials (dictionaries, encyclopedias, United States History textbooks, computers with Internet access)

Activities/Procedures:

  1. DO NOW/WARM UP: In their journals, students respond to the following question (written on the board prior to class): "Think about the 2000 presidential election events and issues that have taken place since Election Day. What do you think about what has happened? What questions do you have?" Students then share their questions. Allow students to answer others' questions, and correct students as necessary.
  2. As a class, read and discuss "Supreme Court, Split 5-4, Halts Florida Count in Blow to Gore," focusing on the following questions:
    a. Why was the Supreme Court ruling a "sudden and devastating blow" to Vice President Al Gore?
    b. What prompted the Supreme Court of the United States to rule again on the election in Florida?
    c. Why had the recent ruling by the Florida Supreme Court raised hopes in the Gore campaign?
    d. According to the article, even if the United States Supreme Court rules in the Vice President's favor, the ruling might be too late. What is the deadline for certifying electors?
    e. What does "stay" mean when it is used in the context of the Court?
    f. How was the count progressing for Mr. Gore before the Court ordered it halted?
    g. Who voted to grant the stay?
    h. Who was opposed to the stay?
    i. According to the article, what is the main argument of the dissenters?
    j. What is the main argument of the majority?
    k. What is a "substantial probability of success?"
    l. What will be the Gore team's main argument for continuing the count?

  3. Divide students into six pairs or small groups, and assign each group one of these perspectives: Justice Scalia, Justice Stevens, Vice President Al Gore, Governor George W. Bush, a Republican voter, and a Democratic voter. In their groups, students read and discuss the text of the Supreme Court's decision to halt the Florida recount. Groups should translate the decision, the dissent, and the response to the dissent into terms and phrases that they can understand. (Have dictionaries, encyclopedias, textbooks, and computers with Internet access available to assist students.) Then, each group should discuss how their assigned person might feel about the details of the text.
  4. WRAP-UP/HOMEWORK: Each student writes a letter from the person assigned in their group to any other assigned perspective. The letter should state why he or she agrees or disagrees with the Supreme Court decision about the Florida recount, as well as why he or she chose to write to this particular person. Students should share their letters in a future class.

Further Questions for Discussion:

  1. Why might the Supreme Court decision be considered political?
  2. Does this decision remove the Supreme Court from its place as "an institution above and outside of raw politics?" Why or why not?
  3. How do you feel about the Supreme Court decision? Support your answer with evidence.
  4. Who do you think will be inaugurated on Jan. 20, 2001? Why?
  5. Whom do you think should be inaugurated on Jan. 20, 2001? Why?
  6. What are some other examples of states' rights issues?

Evaluation/Assessment:
Students will be evaluated based on written journal entries, thoughtful participation in class discussion and group work, and letters.

Extension Activities:

  1. The decision to stay the recount in Florida split the Court. According to the article, the most conservative members of the Court voted to stay the recount, with the most liberal members dissenting. Research the members of the Supreme Court. On poster-board, draw a line, labeling the right side of the line "Conservative" and the left side "Liberal." Using information from your research, order the Justices along the line. On your poster, also include information about them, such as when they are expected to retire, who appointed them, their confirmation process, etc.
  2. Poll your family and friends. What party do they identify with? How do they feel about the Supreme Court decision? Do they understand it? Do they agree with it? Create a graph with your findings, using one color for Republicans and one color for Democrats. Are opinions split along party lines?
  3. Imagine you are a campaign worker, working for either Al Gore or George W. Bush. Write your journal entries from Friday, Dec. 8, 2000, when the Florida Supreme Court ordered a recount of ballots and from Saturday, Dec. 9, 2000, when the United States Supreme Court ordered a stay of the recount.
  4. Research the United States court system. How does it work? Illustrate the trial and appeals process with a chart.
  5. The year is 2020 and a student journalist is interviewing you about your memories of the election of 2000. Write up the transcript of that interview.

This lesson plan can be found at http://www.nytimes.com/learning/teachers/lessons/20001211monday_print.html. © The New York Times Company

 

Lesson #2: Handout #1
Supreme Court, Split 5-4, Halts Florida Count in Blow to Gore
By: Linda Greenhouse

WASHINGTON, Dec. 9 — In a sudden and devastating blow to Vice President Al Gore's presidential hopes, the United States Supreme Court voted 5 to 4 today to stop the vote counting that had begun hours earlier in Florida. The court set Monday morning for arguments on Gov. George W. Bush's appeal of the Florida Supreme Court ruling that ordered manual recounts across the state of ballots that initially showed no vote for president.

With the clock ticking inexorably toward a Dec. 12 deadline for certifying electors, the Supreme Court's order, issued shortly before 3 p.m., could have the effect of erasing the Democrat's chances that the Florida Supreme Court had so dramatically revived barely 24 hours earlier with its 4-to-3 ruling.

Even if by some chance the United States Supreme Court eventually rules in the vice president's favor, the ruling could come too late. While not conceding ultimate defeat, David Boies, Mr. Gore's chief lawyer, said today that "if we had world enough and time," a short-term stay would make little difference, but that there was now a "very serious issue" as to whether the vote counting could be finished in time even if the court's eventual ruling allowed it to resume.

Briefs are due at the court at 4 o'clock Sunday afternoon — two hours after the recount was originally supposed to have been completed — with 90 minutes of argument set for 11 a.m. Monday. Partial returns from the few hours of vote counting before the court intervened showed that Mr. Gore was making progress, according to Democrats in Florida, toward erasing his deficit of fewer than 200 votes.

The justices who voted to grant the stay were Chief Justice William H. Rehnquist and his four conservative colleagues: Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

The dissenters were the court's four most liberal members: Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

The bitter division on the Court, awkwardly papered over only last Monday with an order to the Florida Supreme Court to clarify an earlier ruling, burst into the open with the action this afternoon.

Justice Stevens filed a two-page dissenting opinion, which the other three dissenters joined. "To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the court throughout its history," Justice Stevens said.

The majority did not issue an opinion in support of its order, but Justice Scalia said he felt obliged to issue a statement in response to the Stevens dissent.

"One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, `legally cast votes,' " Justice Scalia said, adding: "Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."

Justice Scalia said that "it suffices to say that the issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success."

On one level, that statement was simple boilerplate: any party seeking a stay from the United States Supreme Court, or any other court, ordinarily has to show a substantial probability of success. But in this case, the granting of the stay demonstrated a probability was likely even higher than "substantial," because any of the five justices in the majority who harbored doubts about the eventual outcome probably would have allowed the vote counting to continue while the court considered the case.

In his dissenting opinion, Justice Stevens said there was a risk that granting the stay was equivalent to deciding this case in favor of Mr. Bush. "Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election."

Mr. Boies said today that the brief the Gore team would file on Sunday would argue strongly that the United States Supreme Court should not interfere with a state Supreme Court's interpretation of state law. Throughout this dispute the Democratic legal team has not hesitated to point out the paradox of the Republican side, usually so solicitous of state sovereignty, seeking federal court intervention to stop the recounts. The Bush team was the first to bring a lawsuit in this case, filing an emergency motion on Nov. 11 in Federal District Court in Miami to stop the recounts that were then under way.

And today it was Mr. Gore's lawyer, Mr. Boies, who asserted "this is a matter of state law, state law is deserving of deference," a view traditionally ascribed to conservatives.

Governor Bush had filed the urgent application for a stay on Friday night, hours after the Florida Supreme Court reversed a lower state court and ordered statewide manual recounting of tens of thousands of ballots.

In his dissenting opinion, Justice Stevens identified three principles he said the order today had violated: respect for rulings by state courts on questions of state law; the cautious exercise of the United States Supreme Court's jurisdiction on matters that largely concern other branches of government; and declining to exercise jurisdiction over federal questions "that were not fairly presented to the court whose judgment is being reviewed."

"The majority has acted unwisely," he said.

The court acted to take jurisdiction of the case without waiting for Governor Bush's lawyers to file a formal appeal of the Florida Supreme Court's ruling. The justices acted on the basis of the 40-page application for a stay that the Bush lawyers filed late Friday.

Under the Supreme Court's rules, a stay requires the votes of five justices and, in addition to a likelihood of success, requires the applicant to show that "irreparable injury" would result unless the court intervened on an emergency basis, without waiting to review the merits of a case.

In seeking to meet that standard, Mr. Bush's stay application said the Florida Supreme Court ruling "imperils Governor Bush's proper receipt of Florida's 25 electoral votes" by raising "a reasonable possibility that the votes will be called into doubt — or purport to be withdrawn — at a time when the Dec. 12 deadline for naming Florida's electors" would make any later judicial relief futile.

In their brief opposing the stay, Mr. Gore's lawyers said the assertion that "a candidate for public office can be irreparably harmed by the process of discerning and tabulating the will of the voters" was surprising and "remarkable."

The question of irreparable harm was evidently the question in contention for the justices today. In his concurring statement, Justice Scalia said that "the counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner," Governor Bush, "by casting a cloud upon what he claims to be the legitimacy of his election."

Justice Stevens, in his dissent, said that while "counting every legally cast vote cannot constitute irreparable harm," there was a danger that the stay itself would cause irreparable harm not only to Mr. Gore but "more importantly, the public at large" because, given the deadlines, it would amount to a decision on the merits. "Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election," Justice Stevens said.

He added: "As a more fundamental matter, the Florida court's ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted."

The case, Bush v. Gore, No. 00-949, presents obscure statutory and constitutional issues that, while they will form the basis of the eventual decision, will inevitably be overshadowed in the eyes of history by the political import of what occurred today.

Rarely in the United States Supreme Court's modern history have the justices' oftenexpressed concerns about preserving the court as an institution above and outside of raw politics foundered so visibly. Rarely, if ever, has the court faced such a supercharged political moment across dividing lines of such evident anger and mistrust.

Monday was to have been the start of a four-week year-end recess, celebrated with the trimming of the court's 22-foot blue spruce Christmas tree scheduled for Wednesday, and a party at which the chief justice traditionally leads his colleagues and court employees in a sing-along. The mood this year is likely to be not quite so festive.

This handout can be accessed at http://www.nytimes.com/learning/teachers/ lessons/20001211monday. html.
© The New York Times Company.

Resources at the Law-Related Education Inventory

The Law-Related Education Inventory has the following items that might be useful in working with students in discussing the roles of judges and specifically the Supreme Court:

  1. The Supreme Court. This video is geared for high school students and discusses how the court handles its cases, and among other topics, how presidential appointment of justices works. Library number 347/S76.
  2. The Supreme Court Today. This video is for high school students and consists of Justice Breyer leading discussion of how the judiciary operates and cases of interest. Library number 341.69/W195.
  3. This Honorable Court. This video is for elementary school students and shows interviews with U.S. Supreme Court justices about how the court options. Library number 347.035/W53t.

The Law-Related Education Inventory has many resources to help teach about law-related topics. To order a catalog, call Janessa Akin at the Kansas Bar Association, (785) 234-5696. The Kansas Bar Association and the lawyers in your community sponsor the Law-Related Education Inventory. The clearinghouse will mail free copies of law-related posters, games, mock trials, booklets, lesson plans, and other aids. It is open Monday through Thursday, 8:00 a.m. to 7:00 p.m., and Friday, 8:00 a.m. to 5:00 p.m. The director of the Teachers College Resource Center, which houses the Law-Related Education Inventory, is Marla Darby. She can be reached at Darbymar@esumail.emporia.edu/.

   Terrific Technology for Teachers

  1. The New York Times election 2004 Web site has many articles, interactive activities, and links to discuss the aftermath of the election. It can be found at http://www.nytimes.com/pages/politics/campaign/index.html.
  2. The Supreme Court has a Web site that discusses many of the issues concerning the Court, from powers to dockets and information about the justices at http://www.supremecourtus.gov.
  3. For more information on Kansas courts, including cases, judges, and much more, visit http://www.kscourts.org.
  4. Check it out! http://www.kidsvotingkansas.org is a grassroots, nonpartisan group with a mission of educating young people about the rights and responsibilities of living in a democracy.
  5. For a local example in this year’s election about a campaign to oust a judge because of her sentencing record, go to http://www.ljworld.com/section/citynews/storypr/186601.


Law Wise is published by the Kansas Bar Association during the school year. The Kansas Bar Foundation, with Interest on Lawyers Trust Accounts funding, provides support for this publication. Published free, on request, for teachers or anyone interested in law-related education, it is edited by Crystal Marietta, Pittsburg, (620) 231-5620.

For further information about any projects or articles, contact Ron Keefover, Education and Information Officer of the Office of Judicial Administration, Topeka, (785) 296-4872, or Janessa Akin, Public Services Director of the Kansas Bar Association, Topeka (785) 234-5696.

Law Wise is printed at the Kansas Bar Association, 1200 Southwest Harrison, P.O. Box 1037, Topeka, Kansas 66601-1037.