Legal Affairs – The Supreme Court-and Others-Flub the Challenge

National Journal

"If we desire respect for the law, we must first make the law respectable."

-Louis D. Brandeis, 1912

A bitter, 5-4 ideological split. (Or was it 7-2? Or 5-2-2? Or 3 plus 2 to 2 plus 2?) Six separate opinions. A rushed, late-night release. A presidential contest ended by a clot of legalese so dense and Delphic that you had to read the key sentence at least three times to realize that five Justices had cut off all vote recounts once and for all: "Justice [Stephen G.] Breyer’s proposed remedy-remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest, until December 18-contemplates action in violation of the Florida election code, and hence could not be part of an `appropriate’ order authorized by Fla. Stat. Section 102.168(8) (2000)." This is the way the election ends-not with a vote, but with a citation.

The U.S. Supreme Court-put in an excruciating position by the reckless adventurism of the Florida court’s efforts to help Al Gore and by unprecedented pressure to act quickly-did not rise to the challenge. The majority was right to hold (by 7-2) that the manual recount process ordered by the Florida Supreme Court (by 4-3) was so unfair, unreliable, and capricious as to deny many voters (especially Bush voters) the equal protection of the law. The Court was also probably right to believe (if not to rule) that the Florida court’s recount process was too badly broken to be fixed, restarted, and completed in time to produce by Dec. 18 (the real deadline) a result as credible as that of the machine recount that George W. Bush won more than a month ago.

But it was deeply disappointing to see the majority saying, in effect: "Nobody has come up with a fair manual recount process, and the clock has run out. Bush is still ahead. So read our lips: No more counting." Better to have given the Florida court one last, long-shot chance-under watchful, adult supervision-to get it right and get it done by Dec. 18.

Justice John Paul Stevens, in one of the four dissenting opinions, cut to the heart of the problem in this case when he said: "What must underlie [the Republicans’] entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed…. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land."

But Stevens failed to acknowledge how hard the Florida court had worked to invite cynical appraisals of its impartiality. And in a closing double entendre, he seemed to invite a cynical appraisal of his own Court: "Although we may never know with certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law."

In the aftermath of Election 2000, the U.S. and Florida Supreme Courts have done very little to make the law respectable. If this cloud has a silver lining, it comes as a reminder to a court-worshipping nation that judges are as fallible (and sometimes as political) as politicians. It’s a good time to recall Abraham Lincoln’s response to a far, far more damaging decision:

"Supreme Court … decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, [and] are also entitled to very high respect and consideration in all parallel cases, by all other departments of the government. And while it is obviously possible that such a decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, … can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made … the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal."

Whatever we think of Bush vs. Gore, it is binding on Bush and Gore. A poorly written, weakly reasoned 5-4 decision is still the law of the land, at least for this case. And the defiance urged by Gore partisans, such as the ever-more-Sharpton-like Jesse Jackson, would be a step toward anarchy. But forceful criticism of unstatesmanlike decisions such as this one-and of the Florida court’s hubristic, judicial imperialism-is a vital antidote to the tendency of judges of all political stripes to aggrandize their own power. Indeed, if judges cannot be persuaded to restrain themselves, they risk a dangerous and destabilizing popular backlash.

With enough good will and patriotism, the Washington Nine should have been able to submerge their disagreements, speak with one clear voice, and nudge Gore’s faltering legal offensive toward a natural death, rather than so actively assisting in its suicide. The message to the Florida court should have been: "The manual recount process you have ordered is unconstitutional and unfair. You can try to set a uniform chad-interpretation standard, and then you can start counting all over again, but, you’d have to get it done in time for careful judicial review of all disputes by Dec. 18. We’ll be watching. Good luck."

The nine Justices’ ugly split was but one of several missed opportunities in the wake of an election so freakishly close that the margin of victory in Florida-about one-one-hundred-thousandth of the 100 million votes cast nationwide-was dwarfed by the margin of error.

Some other missed opportunities:

• Bush could have taken the moral high ground on Nov. 8-when the outcome of the machine recount was in doubt and the air thick with butterfly-ballot-bashing-by pledging to concede if he lost that recount and challenging Gore to make the same pledge. Instead, Bush clung passively to his lead, looking like a man afraid to have all the votes counted.

• About the same time, Gore could have taken both the moral and the strategic high ground-and could probably have gotten a fair, statewide manual recount such as that urged by Justices David H. Souter and Breyer-if that was what he had sought. As the trailing candidate, Gore (not Bush) had the burden of proposing a statewide recount under a uniform chad-counting standard. The standard could have been developed through an evidentiary hearing on what sorts of dimples (if any) amount to convincing evidence of voter-intent. Such a proposal would have won broad public support, put pressure on Bush to agree, and succeeded in the Florida courts if Bush had resisted. A uniform standard would also have survived U.S. Supreme Court review.

Instead, the Gore team aimed for narrow, tactical advantage by seeking recounts only in mainly Democratic counties. A statewide recount would obviously have been more credible and fairer to Bush. If Gore had had any strategic vision, he would have figured out that even if he could get a rigged recount past the overwhelmingly Democratic Florida Supreme Court, he would run into trouble in the U.S. Supreme Court.

• The Florida court strained so hard to deny Bush political momentum in its original, Nov. 21 decision that it ended up inadvertently hurting Gore. By rewriting Florida’s election code to delay Secretary of State Katherine Harris’ certification of Bush as the winner, the Florida court necessitated its own imposition of a tighter deadline (or apparent deadline) for completion of manual recounts. The Miami-Dade County recount could have been done had the court instead let Harris certify the results on the date specified by the Legislature, while making it clear that Gore could seek a statewide manual recount in a post-certification contest lawsuit.

• The manual recounts ordered on Dec. 8 by the Florida court might have been both possible and fair had that court candidly acknowledged that the only absolute deadline was Dec. 18, not Dec. 12, and had the court used the extra time to order development of a statewide chad-interpretation standard and a more credible, less chaotic recount.

Instead, the majority made a series of dubious decisions-almost all to the benefit of Gore-with an overarching flaw best described in Justice Major B. Harding’s dissent: "Even if such [a statewide] recount were possible [by Dec. 12], speed would come at the expense of accuracy, and it would be difficult to put any faith or credibility in a vote total under such chaotic conditions."

Amid such blunders, the raging partisan warriors on both sides bring to mind the wisdom of Judge Learned Hand: "[This] much I think I do know-that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish."