Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  34 to no more deference than those of the Jim Crow state courts that had manifested a willingness to lie and cheat in order to nullify Bro- wn and obstruct the civil rights movement. It is impossible to dis- prove conclusively these Republican accusations, especially since the genuine indeterminacy of Florida election law probably made it inevitable that the partisan preferences of the Florida court’s De- mocratic justices would influence their statutory interpretations (in favor of Al Gore). 119 Yet, permitting partisan considerations to in- fluence the resolution of genuine legal ambiguity is not equivalent to “stealing” an election. It is almost impossible to imagine Rehn- quist, Scalia and Thomas concluding that these particular state court interpretations of state law were “absurd” in any context other than the one in which George W. Bush’s election to the presidency hung in the balance. 120 Indeed, in other settings, these three Justices have insisted that federal courts should defer even to state court interpre- tations of federal law unless “patently unreasonable.” 121 It takes little imagination to picture the impassioned (indeed, characteristically vitriolic) assault on judicial activism and federal overreaching that Justice Scalia might have penned had the candidates been reversed and it was Al Gore asking the United States Supreme Court to re- solve a presidential election contest by repudiating a state court’s interpretation of state law. 122 “injustice being done by the Florida Supreme Court” is helping Gore to “steal” the election); Krauthammer, supra note __ (blaming a “rogue state supreme court,” which in “an astonishing burst of willfulness,” created a “constitutional crisis” because of its “mission” to defeat George W. Bush); Matthew Vita & Juliet Eilperin, “Congress Braces for Battle over Electoral Votes,” Washington Post , Nov. 22, 2000, A19 (quoting House Majority Whip Tom DeLay accusing the Democratic Party of “prosecuting a war to reverse the results of a fair, free election by any means necessary” and calling the Florida Supreme Court decision “a blatant and extraordinary abuse of judicial power”); Eiric Pianin & Helen Dewar, “Congress Sits on Political Powder Keg,” Washington Post , Dec. 10, 2000, A31 (noting that DeLay and other congressional Republicans have accused Democrats and Florida’s Supreme Court of an effort to “steal” the election from Bush). Indeed, the con- servative Justices defended their involvement by implicitly blaming Gore for turning to the courts in the first place. Bush , 121 S. Ct. at 533 (“None are more conscious of the vital limits on judicial authority than are the members of this Court. . . . When contending parties invoke the process of the Court, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.”). 119 On the other hand, in defense of the state supreme court, Florida precedents really do emphasize the importance of effectuating the will of the voters in election controversies. See supra __. 120 Bush , slip opinion at 8 (Ginsburg, J., dissenting) (“Were the other members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court.”) 121 Wright v. West, 505 U.S. 277, 291 (1992) (Thomas, J., plurality op.) (habeas proceeding); id. at 371 (Scalia, J., dissent- ing). See also O’Dell v. Netherland, 521 U.S. 151, 156 (1997) (Thomas, J.) (under Teague , federal courts on habeas review must defer to state courts’ “reasonable, good-faith interpretations” of federal court precedent). See also Sandra D. O’Connor, Trends in the Relationship Between the Federal and State Courts from the Perspective of a State Court Judge, 22 Wm & Mary L. Rev. 801, 813 (1981) (“There is no reason to assume that state court judges cannot and will not provide a ‘hospitable forum’ in litigating federal constitutional questions.”). 122 Cf. Planned Parenthood v. Casey, 505 U.S. 833, 995-1002 (1992) (Scalia, J. dissenting) (analogizing Casey to Dred Scott ,