Never in recent history have the courts looked so much like another bunch of partisan players in the political wars, camouflaged in black robes that cannot hide their partiality and willfulness. The worst may be yet to come: A 5-4 U.S. Supreme Court decision this week anointing George W. Bush president–with the more conservative justices outvoting the more liberal ones–would be hard to see as anything but evidence that either the majority or the dissenters (or both) were swayed by politics, not law. And although I haven’t altogether given up hope for a unanimous decision, the smart money is betting on a bitter 5-4 split as the oral arguments (at 11 a.m. ET Monday) approach.
Election 2000–with the Republican-controlled Florida Legislature in open revolt against the Florida Supreme Court, with top Republicans in Washington trashing the Florida court as a bunch of political hacks, with top Democrats intimating the same of the 5-4 U.S. Supreme Court majority that stopped the Florida court’s manual recounts in an interim order Saturday, with some of the justices themselves lobbing thinly veiled charges of hypocrisy back and forth–has been a disaster for the judiciary’s image (at least in some circles) as politically impartial. The election aftermath may also have started a cycle that could destabilize the rule of law for years to come by launching a new era of warfare between imperial judges and other branches of government. The backlash against the Florida judges–and against others across the nation who are deemed to have usurped legislative and executive powers–will reverberate for a long time, in ways both foreseeable and unforeseeable.
"The U.S. Supreme Court was fairly neutral and may have been slightly favorable to us." -Al Gore, Dec. 5, 2000
Dear Mr. Chief Justice: I offer below a first draft of an opinion for your consideration. It stresses that no court has the constitutional power to pass final judgment on a dispute over who won a presidential election and that the Florida Supreme Court’s decision of Nov. 21-which concocted new vote-counting rules after the election-is binding neither on the Florida Legislature nor on Congress. The bottom line is that this virtual tie between Bush and Gore presents a political question on which the Constitution gives the last word to the people’s elected representatives, not to judges seeking to divine "the will of the people" by squinting to see almost-invisible dimples. Please forgive the footnotes, which I include for fun and with no illusion that they belong in any opinion for the Court.-Volunteer Clerk
MARGARET WARNER: Late this afternoon, the Bush and Gore legal teams filed their briefs on Bush’s pending appeal before the U.S. Supreme Court. The court is set to hear arguments Friday morning. We asked two observers to read today’s filings, and brief us on them.
Jeffrey Rosen is a law professor at George Washington University, and legal affairs editor at the New Republic Magazine. Stuart Taylor is a legal affairs columnist for the National Journal. What we didn’t tell our viewers which was that we insisted you take a speed reading course because these just came out.
But, Stuart, the gist of Bush’s appeal was that the Florida Supreme Court had overreached when it extended the vote- counting deadline down there. What do you think were the strongest arguments that the Bush brief makes in support of that?
STUART TAYLOR: Just to give the gist a little more fully, the claim is that the Florida Supreme Court violated federal law, both an act of Congress from 1887 that was passed after the Hayes-Tilden problem, and Article II of the Constitution violated federal law by changing Florida law after the November 7 election in an effort by the Gore camp to change the outcome of the election, which the Florida state Supreme Court, the Bush camp argues, basically went along with.
Now the strongest points, I think, are the state court did say in its opinion that the state’s legislation on this was hyper-technical, and the seven-day deadline for completion of hand counts and the certification of the election results just seemed sort of silly to them and didn’t work in this instance because you needed more time for hand counts, and therefore, they were going to junk that and write their own rules.
Depending on how you count them, there are now at least nine separate lawsuits fueling the postelection feud in Florida. Al Gore’s legal team – seizing on the confusing Palm Beach County ballot that may have caused thousands of Gore supporters to accidentally vote for Pat Buchanan – is searching for a way to prevent the vote count from being officially certified. On Saturday the Bush camp fired off a shot of its own, filing a federal lawsuit to prevent a Gore-requested hand recount of ballots in Palm Beach and other counties. Teams of lawyers for both sides have descended on south Florida to pore over election statutes for anything that might give them a foothold in court. “We’re preparing for a full-blown legal fight,” says Ron Meyer, a Democratic election-law attorney from Tallahassee.
Just how long that battle will last is hard to say. At some point Gore – or Bush – could decide that the fight is too damaging to himself and the country and concede the race. If neither does, the lawyers could drag this thing out for weeks or even months.
The Democrats got a break last week when state circuit court Judge Kathleen Kroll issued what may have been the first court order in history freezing the results of a presidential election, barring local officials from certifying Palm Beach County’s ballots at least until a hearing this week. At first, Democratic lawyers had filed their case in federal court in West Palm Beach, where they were assigned a Reagan-appointed judge, Kenneth Ryskamp. The lawyers soon dropped the case there and refiled in state circuit court, where they drew Kroll – a liberal Democrat married to a Clinton-appointed Labor Department official. That doesn’t, of course, mean Kroll will be an automatic pushover for the Democrats. But some Republicans have complained that the Gore side is shopping for sympathetic judges.
"A word is not a crystal, transparent and unchanged, it is the skin of a living thought," wrote Oliver Wendell Holmes Jr., one of our greatest judges. A Kennedy Administration lawyer offered that quote a long time ago to square the language of the U.N. Charter with the U.S. naval blockade of Cuba in 1962. In the charter, the United States had undertaken a solemn obligation to renounce "the threat or use of force" except in "self-defense" against "armed attack." It took some fancy lawyering to classify unfired Soviet missiles in Cuba as an "armed attack." But it seemed a bad idea to wait for someone to fire them.
This may seem to digress from the topic du jour. But bear with me. Much as I might like to predict or opine who should be our next President, I don’t have a clue, and it may be all over when you read this. So this is an opportune time to stand back from the cacophony of lawyers, spinners, anchors, protesters, professors, and Palm Beach partisans. To get past the perishable pensees of the pundits (present company included), whose "characteristic flaw has been to exaggerate the importance of whatever is being pundited about," as Wall Street Journal pundit Holman Jenkins observes. To stop bouncing among skirmishes and survey the battlefield from above, as one might from a hot-air balloon. (Oops. Unfortunate simile. Make that a weather satellite, or a B-2 bomber.)
What brings Holmes to mind is the striking unhelpfulness of the words in our constitutions, statute books, and judicial precedents as a guide through our current constitutional conundrum, or crisis, or whatever. This at a time when "the selection of the American President is now dependent on a bewildering array of small judgment calls by local ballot examiners and big decisions by judges and state officials about whether they should be heeded," in the words of The Wall Street Journal.
The inescapable fact is that no matter how many recounts or lawsuits we have, we will never know who would have won this election if it had been run perfectly. There are irregularities all over the place, by the thousands, in every national election. A fraction of them come to light. A fraction of that fraction can be proven. These anomalies range from outrageous to trifling. The rules distinguishing the ones that are just tough luck from the ones that courts will redress are necessarily somewhat arbitrary. It will always be thus.
Prescription Drugs Bush and Gore both have plans to help the estimated 13 million seniors who lack prescription-drug coverage–and the candidates offer voters a real choice of approaches. The Gore plan, costing $253 billion through 2010, adds a prescription-drug benefit to Medicare. After paying a $25 monthly premium, a senior would be reimbursed half of all drug bills up to a maximum of $5,000 in bills per year. In addition, the plan would cover all prescription payments exceeding $4,000 in out-of-pocket costs per year.
Bush’s plan, less clear on the details, has a price tag of $158 billion. He says he will work with Congress to reform Medicare. Until then, he will provide $48 billion to the states to help low-income seniors pay for their drugs. The rest of the money would cover at least 25 percent of the premiums for seniors buying health insurance, including drug coverage, from private insurers or Medicare. All prescriptions are covered after $6,000 in out-of-pocket expenses. Both plans, which are voluntary, cover pre-existing conditions and pay all costs for seniors with incomes below $11,300.
As an expansion of Medicare, Gore’s plan builds on an imperfect but generally dependable system that serves some 39 million seniors. Bush’s plan, preferred by drugmakers and insurance companies, is intended to offer seniors wider choices.
– David Noonan
Social Security Both candidates are discussing Social Security’s long-term problems, which is good. But neither will admit publicly that the only way to manage the baby boomers’ retirement is to raise Social Security taxes to the moon, increase the retirement age and scale back benefits in other ways, or to stuff trillions of dollars into the system.
Al Gore saw his opening, and he took it. Campaigning last Wednesday in Backlick, Ohio, the vice president unexpectedly tossed aside the top of a scheduled speech about energy and the environment and instead launched into a passionate lecture about the importance of the Supreme Court. All morning, Gore had been asking aides to inform him as soon as the court handed down its expected final opinions of the year. At about 11 a.m., just as Air Force Two was touching down in Ohio, he got the news he’d been waiting to hear: the justices had struck down laws in 31 states banning so-called partial-birth abortions, the controversial late-term procedure denounced by abortion opponents. But the vote was close–5-4–and the vice president couldn’t wait to seize the opportunity to raise doubts about George W. Bush. The vice president immediately reworked his speech. “The next president will nominate… perhaps four justices to the Supreme Court,” Gore warned in the new, improved text. “One extra vote on the wrong side,” he said, “would change the outcome, and a woman’s right to choose would be taken away.”
Gore’s warning was an exaggeration, to say the least. In fact, six of the nine current justices have supported fairly broad abortion rights. Still, Bush chose to downplay the decision, wary of being dragged into an abortion brawl that could put him on the wrong side of public opinion, sending moderate voters–especially women–fleeing. But he couldn’t avoid the matter entirely: Bush issued a terse statement saying he would “fight for a ban on partial-birth abortion.” Later in the week he cut a deal to keep the GOP’s hard-line anti-abortion plank in the party’s platform.
On the issues, Bill Bradley and Al Gore do not differ very dramatically. On the character front, however, they present a clear but complicated contrast: Gore’s intelligence and energy are marred by a persistent habit of distorting the truth-including both his opponents’ records and his own-sometimes to the point of flat-out falsehood. Bradley, on the other hand, seems pretty honest, albeit flawed by an above-it-all sanctimoniousness that made it seem jarring when he shifted belatedly, and half-heartedly, into attack mode.