Supreme Court buffs are sentimentalists. We apotheosize the Court. When it decided to review the first Florida Supreme Court decision and other lawyers, non-lawyers and foreigners all insisted that "the fix is in," the "experts," including myself, confidently assured them that there was no federal question and that this states' rights-oriented Court would quickly dump the case. We were half-right; there was and is no federal question, but one way or other, Chief Justice William Rehnquist and his four allies were going to make sure that George W. Bush's shrinking lead would survive, even though a fair recount would probably make Al Gore the winner.
When Gore's lawyers began the contest phase of the proceedings on November 27, they ran into Judge N. Sanders Sauls, a Republican appointee marked by scandal and, to no one's surprise, lost. When a 4-to-3 majority of the Florida Supreme Court reversed Sauls and the recount began, quickly shrinking Bush's margin, it was time for the heavies to move back in.
First, the Bush lawyers asked for a stay. Within a few hours after the briefs were filed, Rehnquist & Co. brought the recount to a screeching halt with a 5-to-4 stay. When John Paul Stevens wrote a dissenting opinion, Antonin Scalia announced that the majority had already concluded–before hearing argument and within a few hours of reviewing more than 100 pages of briefs–that there was a "substantial probability" that Bush would win.
Scalia gave two reasons for the stay: to insure Bush's legitimacy if he won and to prevent "degradation" of the ballots because of frequent handling. "Legitimacy," however, is a political matter. What business is it of judges to insure legitimacy by blocking an accurate count of who actually won? Second, as a Florida electoral expert told the Miami Herald, it is not, as Scalia claimed, "generally agreed that each manual recount produces a degradation of the ballots," because the ballots are made to be handled frequently.
Monday's argument itself was almost anticlimactic except for one matter: Since the Florida court had made it clear that it was relying solely on the Florida statutes, what was the federal question? The answer came in a little-noticed throwaway line in a Bush brief–the equal protection clause. The issue had not been raised in the Florida Supreme Court, and normally the US Supreme Court will refuse to hear such an issue. But not this time.
And what was the argument? That the standards adopted by the Florida Supreme Court for determining which votes should be counted–"the clear intent" of the voters–was fine, but it didn't provide substandards. There would thus be variations in the way votes would be recounted from county to county and maybe within a county from one team to another.
As Justices Stevens, Ruth Bader Ginsburg and Stephen Breyer pointed out, the Florida court's failure to specify the precise manner for determining the intent of the voter is not unconstitutional. A majority of the states use the same "intent" standard, and no one has ever suggested that it was unconstitutional. Indeed, county-by-county variation is inevitable, given that optical scanners are used in some counties and punch cards in others. Obviously, the Florida legislature knew this when it adopted its electoral law. Yet it did not try to refine the test any further, though other states have done so. In any event, as Stevens pointed out, the disparities would probably have been eliminated because a single judge would resolve all objections.
Breyer and David Souter quite reasonably suggested that if a single substandard were indeed necessary then a remand to the Florida court to establish such a standard was in order. But now the Court's Catch-22 came into play: The Court had itself created so many delays that the December 12 deadline could not be met! No matter that the deadline was set only to avoid Congressional challenges and that the real deadline was December 18.
The rule of law has taken a terrific beating from the Supreme Court. Basic principles of adjudication have been trampled on: that the Court should stay out of partisan political fights as much as possible; that state courts are the arbiters of state law, one of the oldest principles in our jurisprudence and one that this states' rights-loving Court in particular might have been expected to honor; that a court doesn't create new doctrines that no one could have anticipated without giving the affected parties a chance to comply; that before hearing an argument, courts don't issue interim relief that could prove decisive unless absolutely necessary to avoid irreparable harm–hardly the case here since the results of the recount could have been set aside if necessary.
In 1857 the Court intervened in a bitter national dispute when it decided the Dred Scott case. It took decades for the Court and the country to recover from that. How long will it take this time, especially if further investigation confirms what we all already know–that this election was stolen under color of law?
