http://www.washingtonpost.com/wp-dyn/articles/A49398-2000Dec9.html

Internal War Breaks Out in the US Supreme Court

Charles Lane of the Washington Post, December 10, 2000

Abandoning all pretense of unanimity, the U.S. Supreme Court's liberal and conservative members openly attacked each other yesterday over whether to stop the manual recounting of ballots in Florida.

The court's four center-left justices, spearheaded by 80-year-old Justice John Paul Stevens, publicly dissented from the five-member center-right majority's decision to grant Texas Gov. George W. Bush's request to halt the recounts and to hear his case against them. Justice Antonin Scalia, the court's most dynamic conservative, fired back with an opinion defending the majority's decision.

It is barely precedented for justices to express themselves at such a preliminary phase of a case; the writings yesterday not only broke that unwritten rule of the court but also left no doubt that members of the court disagree passionately about the merits of the underlying issues in the election dispute, now officially docketed at the high court as Bush v. Gore.

Ironically, each side asserted that it was acting to save the country from the disaster that would befall it if a questionable electoral process were to go forward, producing a president whose legitimacy would be widely doubted.

In legal terms, perhaps the most important immediate issue before the court was whether, as lawyers for Bush claimed, he would suffer "irreparable harm" if the counting continued, or whether, as Vice President Gore's lawyers argued, Gore would be equally injured if it were halted as the court considered the underlying legal questions.

"The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election," Scalia wrote. "Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."

Yet Stevens, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg, and David H. Souter, argued that it was the majority that had acted "unwisely," and "cast a cloud on the legitimacy of the election."

Since blocking the recounts so close to the Dec. 12 deadline for completing them makes it all but impossible for Gore to take advantage of the Florida Supreme Court's order issued Friday, the dissenters argued, the majority's action was "tantamount" to a decision for Bush on the case itself.

Then the dissenters telegraphed what their own conclusion would be: "As a more fundamental matter," Stevens wrote, "the Florida court's ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted."

Scalia, responding to the dissent, all but predicted the outcome. "It suffices to say that the issuance of the stay suggests that a majority of the court . . . believe that [Bush] has a substantial probability of success."

The court's Dec. 4 opinion in a previous chapter of the controversy came after evident disagreements between liberal and conservative justices at the oral argument three days earlier. But the justices managed to paper over those differences by essentially sending the case back to the Florida Supreme Court for a clarification of the compatibility of the state court's opinion with the Constitution and federal law.

This time, the differences emerged even before the oral argument, with the dissenters accusing the majority of departing from "venerable rules of judicial restraint."

The court called for briefs to be filed by 4 p.m. today and set oral argument, again stretched to 90 minutes instead of the usual hour, for 11 a.m. Monday.

The argument is likely to center on the same question that was debated before the court on Dec. 1: whether the Florida Supreme Court has, in effect, invented new post-Election Day rules for conducting the presidential election in the state, contrary to the 1887 Electoral Count Act and to Article II, Section 1 of the Constitution, which grants power over the selection of presidential electors to the state Legislatures.

Additionally, the Bush application for a stay claimed that the manual recounts would violate the Constitution, because they would result in the votes of residents of different counties being treated differently, and because they would proceed without consistent standards, which the Bush lawyers called a violation of voters' rights to due process of law.

In their filings with the high court, Bush lawyers once again depicted the Florida Supreme Court as a rogue institution bent on rewriting election rules that had been carefully devised by the Legislature.

For example, they noted that, by ordering that the results of a partial manual recount in Miami-Dade County be included in the certified returns, the Florida court had "essentially overruled" a part of Florida's election law requiring county canvassing boards to "manually recount all ballots."

One of the Bush team's key contentions is that Florida's election contest law may not apply to presidential elections, and that, even if it did, the Legislature never expressly granted the Florida court the right to review the decision of a lower court in such a contest, as it did in overturning Judge N. Sanders Sauls's Dec. 4 ruling against Gore.

Thus, the Bush team contends, the Florida court could only have derived its authority to do so in this case from the state constitution's general provisions giving the court the power to hear cases on appeal. The Bush team argues that the U.S. Supreme Court had suggested in its earlier opinion that this would not be permissible.

"The Florida Legislature never provided for such judicial meddling in its legislative structure," the Bush attorneys argued, adding: "It is no answer to characterize the Florida Supreme Court's decision as an ordinary exercise of judicial review."

In a filing to the justices opposing Bush's application for a stay, Gore's attorneys previewed the arguments that they will urge on the court in briefs today.

They contended that the Florida Supreme Court's latest decision took full account of the concerns expressed in the U.S. Supreme Court's opinion about both the 1887 law and the Constitution, and therefore did nothing more than interpret Florida's election contest statute consistent with the intention of the Legislature.

"The court based its interpretation on conventional tools of statutory construction, including relevant precedents," the Gore team argued; "in other words, it engaged in routine statutory interpretation."

There is no "federal question" for the U.S. Supreme Court to consider, the Gore attorneys maintain, because the Florida court did not see "the Florida constitution as circumscribing the Legislature's authority under the federal Constitution. Indeed, the Florida Supreme Court clearly recognized the limitations imposed by Article II--it expressly acknowledged them at the outset of its opinion."

Responding to Bush's argument that the Legislature never intended for the Florida Supreme Court to have appellate review over election contest cases, the Gore team argues that when the Legislature passed the relevant law last year, it knew that previous contests had been appealed to the state Supreme Court, so it must have intended that this one would be.

Whatever the merits of these arguments, legal analysts said that it is unclear how the court could decide the case for Gore without seeming to violate some of the very principles that the majority has said it was attempting to protect by granting the stay.

For example, if the court did affirm the Florida court's order requiring manual recounts across Florida and lifted the stay it imposed against them, it could do so only on or about Dec. 12, the deadline set by federal law after which Florida's electors would lose their presumptive legitimacy in the eyes of Congress, which will count the electoral votes in January.

Thus, the justices would presumably have to accompany such a holding with an additional rule loosening that deadline.

"They're boxed in. They theoretically could say because we had to stay this, we're going to order the recount to continue," Stanford Law School professor Pamela Karlan said. "But the justices in the majority on this stay suggested that the real vice is the Florida Supreme Court making new law for the situation. Boy, would it be new law to say the deadline doesn't apply."

Constitutional scholars expressed astonishment at the forcefulness with which the court's majority intervened in the case, and at the unmistakably angry way in which the minority objected.

"I'm surprised," said Karlan, a former law clerk to the late Justice Harry Blackmun. "You seldom see something like this because it exposes the raw workings of the court."

History suggests that, if the court is to play an effective role as national arbiter of politically charged legal disputes, it is better to do so through unanimous decision-making.

That was the rule the court adhered to in both its landmark 1954 decision ordering public school desegregation, and in its 1974 decision ordering President Richard M. Nixon to surrender his secret Watergate tape recordings to a special prosecutor. In each case, the court was bitterly attacked by those who disagreed with its ruling, but unanimity helped insulate the justices from the criticism.

"They've come down off Mount Olympus," said professor Akhil Amar of Yale Law School.

"There's really a war there," said a Washington attorney who recently clerked for one of the current justices.

-- I'm Here, I'm There, (I'm Everywhere,@So.Beware), December 10, 2000

Answers

Let's solve this by letting all men and women in the military re-vote, since most of their votes didn't get counted due to chicanery by the Clinton administration.

-- Elector (nomore@election.stealing), December 10, 2000.

Don't mess with Scalia. He has "friends".

-- (TonySoprano@Bada.Bing), December 10, 2000.

In my county there were unable to separate the "undervotes" from the rest of the boxes of ballets. They hadn't begun to check the ballots by the time the Supreme Court put out their stay These ballots werre designed to be counted by machines, not human hands/eyes. To recount would be an absolute nightmare and you STILL would not even get close to the truth of the vote. And if I hear one more person whine about this "Democracy" I am going to scream. Democracies operate on majority votes. Republics operate on LAWS. REPEAT AFTER ME, "THE USA IS A REPUBLIC"!!

-- Taz (Taz@ruralflorida.com), December 10, 2000.