Washington Post
December 10, 2000


Analysis: High Court Fractures, Exposes the Seams


By Charles Lane

Abandoning all pretense of unanimity, the U.S. Supreme Court's liberal and conservative members openly attacked each other yesterday over whether to stop the manual recounting of ballots in Florida.

The court's four center-left justices, spearheaded by 80-year-old Justice John Paul Stevens, publicly dissented from the five-member center-right majority's decision to grant Texas Gov. George W. Bush's request to halt the recounts and to hear his case against them. Justice Antonin Scalia, the court's most dynamic conservative, fired back with an opinion defending the majority's decision.

It is barely precedented for justices to express themselves at such a preliminary phase of a case; the writings yesterday not only broke that unwritten rule of the court but also left no doubt that members of the court disagree passionately about the merits of the underlying issues in the election dispute, now officially docketed at the high court as Bush v. Gore.

Ironically, each side asserted that it was acting to save the country from the disaster that would befall it if a questionable electoral process were to go forward, producing a president whose legitimacy would be widely doubted.

In legal terms, perhaps the most important immediate issue before the court was whether, as lawyers for Bush claimed, he would suffer "irreparable harm" if the counting continued, or whether, as Vice President Gore's lawyers argued, Gore would be equally injured if it were halted as the court considered the underlying legal questions.

"The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election," Scalia wrote. "Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."

Yet Stevens, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg, and David H. Souter, argued that it was the majority that had acted "unwisely," and "cast a cloud on the legitimacy of the election."

Since blocking the recounts so close to the Dec. 12 deadline for completing them makes it all but impossible for Gore to take advantage of the Florida Supreme Court's order issued Friday, the dissenters argued, the majority's action was "tantamount" to a decision for Bush on the case itself.

Then the dissenters telegraphed what their own conclusion would be: "As a more fundamental matter," Stevens wrote, "the Florida court's ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted."

Scalia, responding to the dissent, all but predicted the outcome. "It suffices to say that the issuance of the stay suggests that a majority of the court . . . believe that [Bush] has a substantial probability of success."

The court's Dec. 4 opinion in a previous chapter of the controversy came after evident disagreements between liberal and conservative justices at the oral argument three days earlier. But the justices managed to paper over those differences by essentially sending the case back to the Florida Supreme Court for a clarification of the compatibility of the state court's opinion with the Constitution and federal law.

This time, the differences emerged even before the argument, with the dissenters accusing the majority of departing from "venerable rules of judicial restraint."

The court called for briefs to be filed by 4 p.m. today and set oral argument, again stretched to 90 minutes instead of the usual hour, for Monday at 11 a.m.

The argument is likely to center on the same question that was debated before the court on Dec. 1: whether the Florida Supreme Court has, in effect, invented new post-Election Day rules for conducting the presidential election in the state, contrary to the 1887 Electoral Count Act and to Article II, Section 1 of the Constitution, which grants power over the selection of presidential electors to the state legislatures.

In their filings with the high court, Bush lawyers once again depicted the Florida Supreme Court as a rogue institution bent on rewriting election rules that had been carefully devised by the state legislature.

One of their key contentions is that Florida's election contest law may not apply to presidential elections, and that, even if it did, the legislature never expressly granted the Florida court the right to review the decision of a lower court in such a contest, as it did in overturning Judge N. Sanders Sauls's Dec. 4 ruling against Gore.

Thus, the Bush team contends, the Florida court derived its authority to do so in this case only from the state constitution, something the U.S. Supreme Court had suggested in its earlier opinion would be impermissible.

"It is no answer," the Bush attorneys argued, "to characterize the Florida Supreme Court's decision as an ordinary exercise of judicial review."

In a filing to the justices opposing Bush's application for a stay, Gore's attorneys previewed the arguments that they will urge on the court in briefs today.

They contended that the Florida Supreme Court's latest decision took full account of the concerns expressed in the U.S. Supreme Court's opinion about both the 1887 law and the Constitution, and therefore did nothing more than interpret Florida's election contest statute consistent with the intention of the state legislature.

"The court based its interpretation on conventional tools of statutory construction, including relevant precedents," the Gore team argued, "in other words, it engaged in routine statutory interpretation."

Whatever the merits of these arguments, legal analysts said that it is unclear how the court could decide the case for Gore without seeming to violate some of the very principles that the majority has said it was attempting to protect by granting the stay.

For example, if the court did affirm the Florida court's order requiring manual recounts across Florida and lifted the stay it imposed against them, it could do so only on or about Dec. 12, the deadline set by federal law after which Florida's electors would lose their presumptive legitimacy in the eyes of Congress, which will count the electoral votes in January.

Thus, the justices would presumably have to accompany such a holding with an additional rule loosening that deadline.

"They're boxed in. They theoretically could say because we had to stay this, we're going to order the recount to continue," Stanford Law School professor Pamela Karlan said. "But the justices in majority on this stay suggested that the real vice is the Florida Supreme Court making new law for situation. Boy, would it be new law to say the deadline doesn't apply."

Constitutional scholars expressed astonishment at the forcefulness with which the court's majority intervened in the case, and at the unmistakably angry way in which the minority objected.

"I'm surprised," said Karlan, a former law clerk to the late Justice Harry Blackmun. "You seldom see something like this because it exposes the raw workings of the court."

History suggests that, if the court is to play an effective role as national arbiter of politically charged legal disputes, it is better to do so through unanimous decision-making.

That was the rule the court adhered to in both its landmark 1954 decision ordering public school desegregation, and in its 1974 decision ordering President Richard M. Nixon to surrender his secret Watergate tape recordings to a special prosecutor. In each case, the court was bitterly attacked by those who disagreed with its ruling, but unanimity helped insulate the justices from the criticism.

"They've come down off Mount Olympus," said professor Akhil Amar of Yale Law School.

"There's really a war there," said a Washington attorney who recently clerked for one of the current justices.

Copyright 2000 Washington Post Company. All rights reserved.

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