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 flawed, and for them to contend that there was simply no more time, as they did,
 that was false.

P: You could argue, as some of the Democrats did, that one reason there was no
 more time is that they had remanded the first case back to the Florida Supreme
 Court, and if they had done things differently, there might have been enough
 time. Plus, other people think that the operative date for the safe harbor is
 November 18, not November 12, so they could have had more time. In fact,
 Justice Breyer said in his dissent, let's send it back to the Florida Supreme Court
 and finish the count. Were you surprised that they stopped the count?

M: Oh yes, very much so. I haven't read the majority and minority opinion lately, but
 I read each of them very carefully, and I did not find convincing the rationale
 stated by the majority.

P: It's also interesting to note that for the most part, although elections are a little bit
 different, the United States Supreme Court under Rehnquist has generally stayed
 away from state issues, and the Fourteenth Amendment has not been a basis for
 many of their decisions. So, some of the Democratic lawyers I have talked to
 have referred to the "Activist Rehnquist Court."

M: It's interesting too, that the majority opinion says in so many words that this
 decision stands alone.

P: For just this one time.

M: And what that means is it does not have precedential value. Now that's a
 travesty. One of the purposes, obviously, of an appellate opinion is [that] that
 should be the law of that case, but there are reliance interests out there. People
 order their affairs in reliance upon a statement by the court of last resort about
 what the law is on this point or what should be done, and what will be allowed
 and what will not be allowed. And for the Supreme Court of the United States to
 state as they have in so many words, this opinion stands alone, [is bad law].

P: Do you think it was a correct decision when Judge Richard Posner said that he
 thought it was a pragmatic decision, that they had to do something to prevent "a
 constitutional crisis," but it wasn't very good law. Do you see it as a partisan
 political decision?

M: I do not know what was going on in their minds. I have a problem with Judge
 Posner because in an interview that was published in the Atlantic Monthly in
 January or February 2001, he made a wisecrack. I quote, "I don't think anybody
 knows what standard they followed in Volusia County."
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