To nation seeking clarity, supreme court delivers

John Leo

12/18/2000 12:00:00 AM - John Leo
The election that wouldn't end finally concluded with a memorable image: confused TV reporters standing in the dark, fumbling for meaning in a strange, six-opinion U.S. Supreme Court decision that nobody could quite figure out. Embarrassed for themselves, and perhaps for the court as well, the reporters couldn't even decide on the spot whether the justices were saying that the election was really over.

The country needed clarity and a decision that couldn't be dismissed as narrow or partisan. What we got was a jumble of impenetrable prose, tortured thinking and the usual 5-4 conservative-liberal split on the key issue. Even for Bush supporters, it was a dispiriting end to a sad campaign.

"This baby is going to the U.S. Supreme Court," former senator Alan Simpson said on Nov. 13. That was an alarming prediction for those of us who think the judiciary is well into its imperial phase. Better for the Supreme Court to restrain itself, think hard about the separation of powers, and refuse to decide the presidential race. But the turmoil reached a point where the worst-case scenario came true: a president picked by a court that seemed to be voting its preferences along party lines.

In defense of the court, it was provoked into a rushed decision by the unexpected 4-3 decision of the Florida Supreme Court. That decision, in the opinion of many analysts, including the Florida court's own chief justice, remade state election law after the fact and virtually begged the U.S. Supreme Court to overrule it. The decision allowed a recount that clearly would have been unfair to voters, particularly Bush voters. Some standards changed from place to place and week to week.

Mickey Kaus, on his kausfiles Web site, pointed out that the Florida decision allowed shifting standards for judging ballots even within a single county. In Miami-Dade, early counting in mostly pro-Gore districts used a permissive standard under Democratic auspices, but the rest of the ballots, including those from neighborhoods favorable to Bush, were trucked to Tallahassee and readied for counting under a different standard.

One of our best legal analysts, Stuart Taylor Jr., wrote on Slate: "In my view, the Florida Supreme Court's majority -- NOT the U.S. Supreme Court -- has betrayed its trust and done grave damage to the rule of law" in "a near-indefensible act of partisanship designed to flip a presidential election." Taylor, who says he has never voted for a Republican presidential nominee, asks: "Would the Florida court's majority have shredded so many legal norms and plunged the nation into so unnecesary a crisis had it been George W. Bush asking for more last-minute manual recounts to put himself over the top?"

The Florida court pushed the conservative majority on the U.S. Supreme Court toward two steps it hates to take: telling a state court how to interpret state law, and basing a crucial decision on the equal-protection clause of the 14th Amendment. Justices Breyer and Souter, although they dissented, agreed with the five-justice majority that there were fairness problems with a manual recount. If the conservative five had bent toward Breyer and Souter, the case would have been remanded to the Florida Supreme Court with intructions that any recount must be conducted under clear and uniform standards.

The five apparently had many reasons for resisting the two. Perhaps the dominant one was fear of much more chaos, two slates of electors and even more serious political damage. The court may have wished to avoid pushing Florida over the midnight "safe harbor" deadline for immunizing its electors from a challenge in Congress. Or maybe the short time frame helped polarize a court that badly needed the solid 7-2 vote that seemed to be within reach.

A remand to the Florida court might have created a messy recount and even more litigation. But time was running out, and if a fair recount proved impossible before Dec. 18 (the date for electors to meet and vote), the fault would have been that of the Florida Supreme Court for shortening the contest phase and failing to call for a statewide recount until the last minute. Michael McConnell, professor of law at the University of Utah, wrote: "Now, however, the Supreme Court has taken on its shoulders the responsibility -- in some quarters, the blame -- for putting the recount to an end, and it has done so by a fractured vote."

The Supreme Court is criticized all the time for being too political. In this case, it wasn't political enough: The partisan-seeming 5-4 vote should have been avoided for the sake of the nation's political health.

The court's ruling did not deny Gore the presidency. Bush was going to win anyway. A number of independent analyses came to the conclusion that the votes Gore needed wouldn't show up in a fair recount under uniform standards. And at any rate, the Florida Legislature and the U.S. Congress were ready to end the mess in Bush's favor.

The problem with the court's decision is that it fits so well into a stab-in-the-back conspiracy theory about the election that could rattle through our politics for some time. The theory can be summed up in two sentences: They didn't count all the votes. The five conservatives gave it to Bush. That is a simplemended assessment of what happened, but it may take a lot of time to put it to rest.