Can the Court Recover?

By ADAM COHEN

In the end, it took the U.S. Supreme Court and its vast store of institutional prestige to end our 36-day national electoral nightmare. When people like Katherine Harris, the Florida legislature and House majority whip Tom DeLay talked about ending the recounts and declaring Bush the winner, they were widely attacked as mere political partisans. But when five Supreme Court Justices did very much the same thing, Al Gore started drafting his concession speech.

The court's decision--a tangle of six different majority, concurring and dissenting opinions--is now every bit as controversial as the election it resolved. To its defenders, the court played precisely the role the Founding Fathers intended: in a time of crisis, the Justices stepped in to ensure that the Constitution, not the political passions of the day, prevailed. The court's decisive ruling forestalled the nightmare scenarios that TV talking heads had been gleefully spinning. Rival sets of Florida electors. A tie vote in Congress. Constitutional deadlock.

But a sizable number of critics, from law professors to some of the court's own members, have attacked the ruling as antidemocratic and politically motivated. Many say they were pained to see a court that once distinguished itself by removing barriers to voting--including racial prohibitions, poll taxes and literacy tests--stand in the way of counting valid votes. And Justice John Paul Stevens spoke for disillusioned observers everywhere when he declared in dissent that the decision to stop the vote count and declare Bush the winner "can only lend credence to the most cynical appraisal of the work of judges throughout the land."

The Supreme Court's ruling in Bush v. Gore will no doubt be taught in law schools and high school civics classes for as long as there is a Supreme Court. It is too soon to know the ultimate verdict of history. But it is not too early to start drawing a few lessons from the decision and the court that delivered it. Among them:

THE U.S. SUPREME COURT IS AS DIVIDED AS THE NATION

There's always considerable pressure on the Supreme Court, in very important cases, to rise above--or at least appear to rise above--political divisions. In Brown v. Board of Education, the 1954 case striking down racial segregation in public schools, Chief Justice Earl Warren worked mightily behind the scenes to extract a unanimous decision. When the Supreme Court first heard the Florida election dispute, it issued a ruling in a 9-0 vote vacating the Florida Supreme Court's first decision and directed the Florida justices to provide a clearer explanation for their reasoning. And when the Justices took up the issue again, some court watchers were predicting that Chief Justice William Rehnquist would do everything possible to craft a Solomonic decision that again brought liberal and conservative Justices together.

But the decision that came down could hardly have been more bitterly polarized. It wasn't just the 5-4 vote, with the court split precisely along its well-established liberal-conservative fault line. It was that the dissenters declared the majority decision to be not merely wrong as a matter of law but also dangerous. The media are often criticized for being needlessly alarmist, but it would be hard to be more Cassandra-like than Justice Stephen Breyer, who warned his colleagues that they "risk a self-inflicted wound--a wound that may harm not just the court, but the nation." Another sign of the vehemence of feeling: Justice Ruth Bader Ginsburg took the unusual but telling step of omitting the word "respectfully" when she wrote "I dissent" at the end of her opinion.

Some court watchers had predicted that Sandra Day O'Connor or Anthony Kennedy--the court's "swing" Justices--might push the court to a compromise. But both joined the majority decision (or probably even wrote it, many believe) ending the recounts. In the end, they faded from view literally as well as figuratively. By joining the majority--which was delivered as a per curiam, or unsigned, opinion--and not signing any of the other opinions, O'Connor and Kennedy were the only Justices whose names did not appear at all in the decision handed down by the court.

JUDGES SOMETIMES PUT RESULTS AHEAD OF PRINCIPLE

Another reason the ruling was greeted with skepticism is that the Justices seemed to contradict their long-held positions on important legal principles to reach the result they wanted. The conservatives on the court, for example, have been on a crusade to shift power from the Federal Government to the states. Their states-rights agenda has led them to strike down as infringements on state sovereignty such federal laws as the Violence Against Women Act and to defer repeatedly to state courts' interpretations of state statutes. But in Bush v. Gore, the conservatives didn't hesitate to strike down the Florida Supreme Court's interpretation of Florida election law.

The conservatives performed a similar about-face on the Constitution's Equal-Protection Clause. The conservative camp, headed by Chief Justice William Rehnquist and Antonin Scalia, is generally skeptical of even well-established equal-protection claims, but in this case they found an entirely new equal-protection right: the right to uniform standards in a manual vote recount. The conservatives have previously not been receptive to pleas of unequal treatment in other areas, even when the most important rights are at stake. In McCleskey v. Kemp, for example, a black man on death row showed that capital punishment is administered without uniform standards from one jurisdiction to the next and is more often applied to blacks than whites for the same crime. But a conservative majority held that this did not violate the Constitution.

Of course, the court's liberal Justices found themselves staking out unaccustomed ideological ground as well. The liberal Stevens-Ginsburg camp, long sympathetic to claims of equal-protection violations, this time was willing to regard unequal treatment of voters as constitutionally permissible. On the subject of federalism, too, they backed what is usually the conservative position; the stirring defense of state sovereignty in Ginsburg's dissent could just as easily have been written by Rehnquist or O'Connor.

Judges like to say they are searching for "neutral principles" to decide cases. But the overall effect of the ideological inconsistencies on both sides was to cast doubt that the court was blindly administering justice. Says University of Virginia constitutional law professor A.E. Dick Howard: "It certainly invites you to read this as a results-driven opinion."

NOT EVERY WRONG HAS A LEGAL REMEDY

Americans generally believe that if the law is being violated, the courts can set things right. But Bush v. Gore makes clear that this is not always the case. Even the majority conceded that among the tens of thousands of uncounted "undervotes" and "overvotes" in Florida, there may be valid votes that simply did not register on the machines. It would be hard to hold otherwise, since the machines' designer had testified that the machines are imperfect and that the only way to get a full count is to examine the undervotes by hand.

But the court said that even if there are additional valid votes, it was too late to count them. The Democrats had argued that the counting could continue up to Dec. 18, when the Electoral College meets, leaving enough time to develop a uniform standard and count all the votes. But the U.S. Supreme Court's majority held that the Florida legislature wanted electors chosen by Dec. 12, and since the ruling came down after 10 p.m. on that day, there simply was no more time to count votes. In other words, the court did not find that the certified results in Florida were accurate--only that it was too late to try to make them more accurate.

JUSTICES ARE NOT ABOVE THE BATTLE

The Supreme Court, like the Wizard of Oz, augments its authority by working its magic out of sight. Toiling away in their neoclassical palace, the nine Justices are perceived as being above the fray and primly cut off from everyday life. (Which is why, reportedly, former Washington Redskins fullback John Riggins once accosted Sandra Day O'Connor at a Washington dinner party and urged, "Come on, Sandy baby, loosen up.") But during this case, it became clear that the Justices are not as insulated as we like to believe. Clarence Thomas' wife draws a paycheck from the conservative Heritage Foundation, where she has been vetting resumes for positions in a Bush Administration--an Administration her husband's vote helped usher in. Mrs. Thomas denies her work is for Bush and says she and her husband don't discuss his cases. But Lisa Lerman, a legal-ethics expert at Catholic University, calls the situation "unseemly."

Justice Scalia, the Bush camp's fiercest defender, has two sons employed by law firms working on the Bush postelection phase. And according to the Wall Street Journal, O'Connor's husband said at an election-night party that his wife, a 70-year-old breast-cancer survivor, would like to retire but that she would be reluctant to leave if a Democrat won the presidency and got to select her successor. Hers was a key swing vote that ensured a Republican victory. A conflict? Says Lerman: "At the very least it creates an appearance problem."

But other experts insist these are not clear-cut violations and that Supreme Court Justices cannot be expected to remain totally aloof from the real world. What's more, recusals come with costs of their own. "The people who are appointed to decide the country's important business take themselves off the case and don't do their duty, then you get a result that can be skewed in the other direction," says Georgetown University law professor Paul Rothstein.

Indeed, by the very fact of the nomination process, all the Justices have links to one political side or the other. Ginsburg and Breyer were nominated to the court during the Clinton Administration and have been strong supporters of Democratic views. O'Connor was vetted for her post by, among others, James Baker, who led Bush's postelection fight. And Clarence Thomas was nominated by George W. Bush's father, who backed him during a heated confirmation battle. On the other hand, court appointees have a long history of defying political expectations and going their independent way. President Bush's first nominee to the court was David Souter, now a stalwart of the court's "liberal" wing.

EQUAL PROTECTION DOESN'T APPLY EQUALLY TO EVERYONE

However politically motivated it may or may not be, the majority decision in Bush v. Gore, on its face, is a ringing affirmation of equal protection. Election lawyers should be able to use it to challenge all disparities in voting machines and Election Day procedures from here on. For instance, Florida's black voters--whose ballots were thrown out at a far higher rate than whites--could use it as the basis for a challenge to Florida's election practices. "This Supreme Court wasn't intending to create the broadest new voting right since one person, one vote," says University of Chicago law professor Cass Sunstein. "But at face value it's not clear that the court didn't do that."

Conservatives in the majority, however, are not likely to be receptive to any of these claims. Generally speaking, Supreme Court decisions establish principles and precedents that can then be used to apply broadly to other cases. But the majority in Bush v. Gore, in a few throwaway lines, cautioned that "our consideration is limited to the present circumstances." In other words, unless you are a presidential candidate whose opponent has persuaded a court to order a statewide recount without uniform standards, this case might not apply to you at all. The Equal Protection Clause of the 14th Amendment was enacted to give equal status to newly freed black slaves. Some civil rights advocates have already pointed out the irony that the conservative Justices, long reluctant to apply the law's protections to minorities, were eager to cite its protections when the victim was a wealthy white Ivy League political candidate.

THE SUPREME COURT'S REPUTATION IS NOT INVINCIBLE

America's confidence in the Supreme Court is, Justice Breyer wrote in his dissent, a "public treasure." But popular support for the court depends on citizens' believing it is an institution that makes principled decisions of law--not merely partisan choices. And every major decision the court gets wrong does lasting damage to its standing. The court has made mistakes in other critical moments in our nation's history, and it has never completely lived them down: the Dred Scott decision in 1857, upholding slavery, and Koramatsu v. United States, which approved the internment of Japanese-Americans during World War II.

By stopping the vote count--and effectively choosing the next President--the Supreme Court gambled a significant chunk of its moral capital. It is too soon to know how the reputation of the court as a whole, and the individual Justices, will ultimately be affected by Bush v. Gore. But one thing is clear: the court has demonstrated in the past that it is fully capable of reasoning its way to dubious decisions. As Chief Justice Robert Jackson once wrote, in a bitter dissent of his own: "We are not final because we are infallible, but we are infallible only because we are final."

--Reported by Viveca Novak/Washington and Tim Roche/Tallahassee

With reporting by Viveca Novak/Washington and Tim Roche/Tallahassee