Bush v. Gore, 531 U.S. 98, 40 (2000) (per curiam)

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Cite as: 531 U. S. 98 (2000)

Ginsburg, J., dissenting

court."). Notwithstanding our authority to decide issues of state law underlying federal claims, we have used the certification device to afford state high courts an opportunity to inform us on matters of their own State's law because such restraint "helps build a cooperative judicial federalism." Lehman Brothers, 416 U. S., at 391.

Just last Term, in Fiore v. White, 528 U. S. 23 (1999), we took advantage of Pennsylvania's certification procedure. In that case, a state prisoner brought a federal habeas action claiming that the State had failed to prove an essential element of his charged offense in violation of the Due Process Clause. Id., at 25-26. Instead of resolving the state-law question on which the federal claim depended, we certified the question to the Pennsylvania Supreme Court for that court to "help determine the proper state-law predicate for our determination of the federal constitutional questions raised." Id., at 29; id., at 28 (asking the Pennsylvania Supreme Court whether its recent interpretation of the statute under which Fiore was convicted "was always the statute's meaning, even at the time of Fiore's trial"). The Chief Justice's willingness to reverse the Florida Supreme Court's interpretation of Florida law in this case is at least in tension with our reluctance in Fiore even to interpret Pennsylvania law before seeking instruction from the Pennsylvania Supreme Court. I would have thought the "cautious approach" we counsel when federal courts address matters of state law, Arizonans, 520 U. S., at 77, and our commitment to "build[ing] cooperative judicial federalism," Lehman Brothers, 416 U. S., at 391, demanded greater restraint.

Rarely has this Court rejected outright an interpretation of state law by a state high court. Fairfax's Devisee v. Hunter's Lessee, 7 Cranch 603 (1813), NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958), and Bouie v. City of Columbia, 378 U. S. 347 (1964), cited by The Chief Justice,

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