There is a sense in which the very fact that a presidential election contest had to be heard by the Supreme Court at all was bad for our democracy. It is not a healthy trend that we routinely relinquish control of our most important political questions to the branch that is supposed to be the least political.
Residents of Florida, for example, have seen their efforts to enforce a death penalty for certain crimes repeatedly thwarted by a state Supreme Court that opposes it. Residents of Kansas City saw a federal judge take complete control of their town's school system, and the state of Nebraska recently learned that even legislating against a form of abortion that leading Democrats call "infanticide" is not tolerated by the U.S. Supreme Court.
So for conservatives, watching this nightmare of litigation following the presidential election has elicited mixed feelings.
In an ideal world, Al Gore's brazen attempt to call every incompletely punched ballot a clear vote for him would have been laughed off long ago without resort to a single robed eminence. (Perhaps the new slogan for the Democrats should be: "Others Merely Count Votes, We Read Minds.")
But not only did the courts fail to stay out of Florida's electoral swamp -- the state Supreme Court made things much, much worse. The Florida court's decision ratified every contemptible step Gore had taken up to that point. Here was Gore attempting to change the rules after the game was over, attempting to use the courts to flout the clear intent of the law -- and the state Supreme Court said: "Gosh, it doesn't seem fair that the law permits only seven days for recounts. Let's give them a few more."
That is when antagonists of judicial activism prayed for the U.S. Supreme Court to intervene -- not to make new laws that would benefit George W. Bush, but merely to state the principle that what the Florida court did was a travesty. National Review Kate O'Bierne was prescient when she wrote "uh-oh" the day the Florida Supreme Court held oral argument. The justices scarcely touched the matter of whether Katherine Harris had abused her authority in deciding not to accept ballots after Nov. 14 -- and that was the legal question at issue! So it was really not a big surprise when that activist (one might even say lawless) court delivered a decision that, by their lights, "did justice," but strayed far from the law.
The U.S. Supreme Court is currently divided between justices who can find fancy language for doing what they want, and those who hew to the law. As such, they are representative of the nation, about half of which believes in rules and process, and about half of which believes only in winning by whatever means necessary.
Justice Ruth Bader Ginsburg kept asking counsel why this court should not give extreme deference to the opinion of the Florida courts on matters of Florida law, stating again and again that this is the Supreme Court's practice.
But as she surely knows, and as Justice Antonin Scalia and Bush attorney Ted Olson made clear, this is not a case in which a state Supreme Court was merely interpreting state law. Instead, the Florida court was using the Florida constitution to attempt to thwart the U.S. Constitution, and in Scalia's words, "That's the problem."
The U.S. Constitution is the supreme law of the land, and it grants power to state
legislatures to appoint electors as they see fit. Some clever liberals like Mario Cuomo twist this language and insist that Florida's legislature did make the rules and intended that the Florida courts would interpret them as circumstances warrant. But that leaves you with the argument that Justice Sandra Day O'Connor could not swallow -- namely that changing a date from Nov. 14 to Nov. 27 is simply implementing the will of the legislature.
If the framers had meant that state institutions taken as a whole would decide electors, they would have said so. The "living document" crowd may find that clause ambiguous. But the segment of the country that continues to believe in law can cheer today because the U.S. Supreme Court unanimously ruled that the word "legislature" means legislature.