If I had been so bold as to have wagered that Al Gore would succeed in the latest Supreme Court round, I would have quickly called my bookie this morning after breakfasting in the Court’s cafeteria and begged him to permit me to cover the bet.
As I stood in line awaiting runny scrambled eggs, Bush Über-strategist Karl Rove, Bush campaign chairman Don Evans and Republican Montana Governor Marc Racicot walked past, laughing and chuckling. Upbeat. Too upbeat. Evans slapped me on the shoulder, said “Howyadoing?” and flashed a large Texas smile. All I could think was, what do these guys know? Perhaps it was bravado-as-spin. Or was it because they possessed inside information? (One prominent Democratic funder had called me earlier to ask if there were any chance Justice Antonin Scalia would recuse himself because his son works in the same law firm as Ted Olson, the lead counsel for the Bush camp. Short answer: No way.) The Democrats present at the Court appeared a lot more somber than the Bush lieutenants. Their demeanor was justified.
The scene in the courtroom was much a repeat of the last time the Court addressed the recount-a-rama. In the audience were a flock of senators (Hatch, Leahy, Kerry, Dodd, Reid, Harkin, Smith and Ashcroft), a bevy of representatives (Markey, Engel, Hyde, Jackson-Lee), and other DC notables (Jesse Jackson, Bob Dole, several Gore kids). At the podium, Olson repeatedly accused the Florida Supreme Court–which last Friday ordered a manual recount of “undervote” ballots throughout Florida and the inclusion of these tallies in the final results–of going beyond the interpretation of existing law into the realm of legislating from the bench. He tried to incite the Supreme Court Justices by reminding them that the Florida justices had dared to issue such a sweeping decision “just four days” after the Supreme Court had slapped them for going too far in their first pro-Gore ruling.
Justice Anthony Kennedy and Justice Sandra O’Connor–the twins of tilt, who often provide the decisive votes–tossed several tough questions at Olson. Kennedy wondered if the Bush team was suggesting that the principles contained within a state constitution could not be applied by an appellate court to an election controversy involving a presidential race. If so, Kennedy remarked, that would be a “holding which has great implications for our republican theory of government.” Was Kennedy considering a state’s-rights position that would benefit Gore? O’Connor asked if Bush’s squad really believed there should be no appellate review of this sort of election dispute. Olson argued it was “logical” to limit judicial review of elections to circuit courts. O’Connor didn’t act convinced. Even Justice Antonin Scalia questioned this part of Olson’s case.
Olson kept returning to his main point: The Florida Supreme Court had conducted a “wholesale revision” of Florida election law–that is, engaged in a “non-judicial act”–and it was not permitted to do so “simply because there is a constitution.” Justice David Souter interrupted to note that Florida law allows the circuit court to order practically any remedy in election disputes, which, he noted, was “about as broad a grant to fashion orders as I can imagine.” But what appeared to bother several members of the Court was the standard used for hand-counting ballots. Justice Stephen Breyer, Souter, Kennedy and O’Connor each queried Olson regarding what might be a fair rule. Was this good news for Gore? Were the in-the-middle Justices looking for a standard they could ride? Or were O’Connor and Kennedy trying to ascertain that the hand-counting process was too arbitrary and, therefore, a violation of the equal protection clause of the Constitution? Olson was not eager to suggest a standard, perhaps fearing he would be offering ammunition to the other side. But when pressed, he said, “penetration of the ballot card.”