Obviously, I don't know what the Bush v. Gore dissenters would do. However, I think that they might hesitate to challenge an 11-0 ruling by the 9th Circuit, on supported by several quite liberal judges as well as some conservative ones. I think it quite likely that the 9th Cir. en banc panel strove so hard for unanimity precisely so as to make a grant of cert. unlikely. Moreover, notice that the en banc decision does not actually reject the panel's interpretation of Bush v. Gore's equal protection reasoning. It does NOT hold that there is no equal protection violation. IT merely concludes that a postponement of the election is not an appropriate remedy given 1) the hardships involved, and 2) the plaintiffs likelihood of success. I doubt that 4 Supreme Court justices would find these issues sufficiently weightly to justify granting cert., but then again I was one of those people who thought the Court would deny cert in Bush v. Gore:). So maybe my doubts are further evidence that Charles Sullivan is correct, and the ACLU erred in failing to petition for cert.
On Wed, 24 Sep 2003, Michael Zimmer wrote: > My colleague, Charlie Sullivan, thinks the ACLU ought to petition for cert. > With the rule of 4, what would the Bush v. Gore dissenters do with that? > > Michael Zimmer > Seton Hall Law School > > > > > > Michael Zimmer > <[EMAIL PROTECTED]> To: [EMAIL PROTECTED] > Sent by: Discussion cc: > list for con law Subject: Re: CA9 takes case in banc > professors > <[EMAIL PROTECTED] > v.ucla.edu> > > > 09/23/03 10:22 PM > Please respond to > Discussion list for > con law professors > > > > > > > Here is my read: Whether "we" agreed with the result in Bush v. Gore or > not, almost all of us were surprised the Court took the cases in the first > instance. Most of us, in our hearts even if it was not only justified but > necessary, nevertheless thought that the Court in making the decision to > stop the recount was making much less of a decision as a court deciding a > question of law and much more of a non-judicial political decision. The > original 9th Circuit panel members are probably not much different than > "we" are in these regards. They thought, ok, the Court said it was acting > as a court deciding a question of law in Bush v. Gore, so let them deal > with it in this context. I think the en banc panel decided to let the > Court out of the bind between the rock -- Bush v. Gore is law, so equal > protection jurisprudence is implicated punch card problems with 135 > candidates in the recall -- and the hard place -- confessing that Bush v. > Gore was a political, non-judicial decision. > > Should anyone try to take the en banc decision to the Court, does anyone > think it would hear the case? > > Michael J. Zimmer > Seton Hall Law School >
