I've posted an extensive discussion of the standard of review issue at: http://lsolum.blogspot.com/2003_09_01_lsolum_archive.html#106442124491926624
alternative link: http://lsolum.blogspot.com/#106442124491926624 I tend to agree with Ilya that the Supreme Court would not find anything certworthy here. Lawrence Solum University of San Diego Quoting Ilya Somin <[EMAIL PROTECTED]>: > 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 > > >
