At a few seconds before 10, the cocktail-party chatter was quickly hushed, and soon forgotten, as the nine justices appeared on the elevated bench and the arguments began. Ninety long, combative minutes later, the early predictions that the court would bring quick finality to the election mess seemed unlikely indeed. So did the confident assertions by the Gore camp and so many legal “experts” that the justices would slap down Bush’s case and side overwhelmingly with the Florida Supreme Court–paving the way for more recounts that might put the vice president over the top. Once again this case reminded us of the immutable truth about the court: Predict at Your Peril.
For the argument’s first 45 minutes, the justices–including the more conservative ones–seemed to have Bush lawyer Theodore B. Olson and his colleagues on the ropes, asking tough, skeptical questions. It appeared to many that Gore would coast to a smashing victory. But that abruptly changed in the 45 minutes that followed. While the four more liberal justices seemed friendly to Gore lawyer Laurence Tribe, the more conservative ones were even tougher than they had been with Olson (all except Clarence Thomas, who maintained his usual silence throughout the argument). They seemed to suggest strongly that they agreed with Bush’s claim that the Florida Supreme Court had changed the law after the election when it extended the recount deadline.
After it was over, some spectators left the court’s chamber predicting a 5-4 vote that would deliver a tough rebuke to the Florida court, with the four more liberal justices bitterly dissenting. Others hoped for at least a partial Gore victory, with some or all of the more conservative justices sticking to their usual deference to state courts and their reluctance to referee political brawls. But to do that, the conservatives would have to stifle any suspicions they might have that the liberal Florida court acted politically.
Still other great minds suspected that Chief Justice William H. Rehnquist and other justices would strive to avoid a split decision; a narrowly divided court could undermine the Supremes’ unique prestige as an impartial arbiter floating above petty politics. How to avoid precisely that? One way would be to do nothing at all publicly, at least for a few days, preparing draft opinions while waiting to see whether the case might just go away. That could happen if Gore runs out of ammunition in the Florida courts–his only hope of getting enough new votes to win–and is forced to concede.
Another way would be to look for a compromise on which most or all of the justices might be able to agree–and which would deny a clear win to either Bush or Gore. Several justices, including Rehnquist and one liberal (David H. Souter), suggested in questions to the lawyers that even if Bush was right in claiming that the Florida court had departed from federal law by changing the rules after the election, perhaps the Supreme Court should stay out of it, leaving Bush to take his complaint to Congress, which has the ultimate power to decide which electoral votes to count. A scenario like this would allow the court to signal that neither Congress nor the Florida Legislature must defer to the Florida court, without expressing any view on whether the Florida court’s ruling was right or wrong. This is what lawyers, God bless them, call a “nonjusticiable political matter.”
In fact this option was urged on the court by the Florida Legislature itself, which argued that a dispute like this one is for Congress to decide. Clinton-appointed Justice Stephen Breyer suggested that perhaps the court should avoid any substantive decision on the ground that the Bush appeal now falls uncomfortably between being “moot” (pointless), because no decision by the court would have much impact, and “unripe” (premature), because any impact a decision would have depends on events in the future. “Is there any respect in which this really makes a difference, this case?” Breyer asked the Republican lawyers. “What’s the consequence of our going one way or the other now?”
Breyer’s question was important, because it got to a critical development: the sole issue that the court agreed to review–whether the Florida Supremes had been wrong to bar Secretary of State Katherine Harris from certifying Bush as the winner on Nov. 17 to allow more time for hand counts–has largely been overtaken by events. Since Bush was still ahead by 537 votes in Florida on the court-ordered Nov. 26 deadline, any reversal of the Florida ruling might have little impact, other than restoring the 930-vote lead Bush had on Nov. 17. And whether those 400 or so votes would make a difference in the eventual outcome of the presidential race will depend on what happens next in the Florida courts and legislature.
Even so, Breyer and the court’s other liberals may not have an easy time persuading the conservatives to give the Florida courts free rein. The Bush camp does not trust the Florida Supreme Court to be fair and fears that its seven justices and other Florida judges might pull a December Surprise or two, helping put Gore over the top by ordering more hand counts in Democratic Miami-Dade County, or voiding thousands of pro-Bush absentee ballots in Seminole County. Republicans were so quick to run to the Supreme Court in part because they hoped the justices would, in effect, look over the shoulders of their Florida colleagues to deter them from letting politics interfere with the law. Now the justices may find themselves in a similar dilemma–trying to make sure that their own ruling, whatever they decide, doesn’t look like politics by other means.
