Why the Supreme Court case matters

The Florida election may be determined in state court, but a ruling in Bush's favor could further the high court's cannibalistic long-term assault on judicial power.

Published November 29, 2000 7:28PM (EST)

In the intertwined history of American politics and law, few moving targets have moved as quickly as the Florida presidential recount. Only a few days ago, George W. Bush's U.S. Supreme Court appeal -- scheduled to be heard Friday morning -- seemed the ultimate opportunity to shut down Al Gore's campaign.

Yet by Tuesday afternoon, when the Bush and Gore legal teams filed their briefs in the Supreme Court clerk's office, so much else had transpired -- hand counts and lawsuits and victory claims and contests -- that the Supreme Court case, like everything else in this morphing political war, seems to have shifted in its meaning.

What it boils down to is this: On one hand, the terms of debate in the Supreme Court seem likely to open as many new fronts in the Florida election war as it will close. And a growing chorus of scholars and attorneys now believes the case will settle little for Bush and Gore.

Yet paradoxically, as the case recedes in importance in the Florida election battle, it is emerging as a crucial battleground in a far longer and broader war over the power of courts, a war that goes back to the early days of the civil rights movement. "It's not overreaching to say that the largest questions of the legitimacy of state and federal courts are at stake here," says Herman Schwartz, a professor of law at American University in Washington and a historian of the Supreme Court.

If the case is diminishing in importance in the presidential race, it is because the issue which brought Bush to court in the first place -- Florida's certification deadline -- no longer seems as earth-shattering. The outcome of the election itself seems more likely to be resolved in Florida courts. Bush, in case anyone has been on another planet for the last two weeks, has asked the U.S. Supreme Court to turn back the clock to Nov. 14, Florida Secretary of State Katherine Harris' original deadline for certification of the election. Bush wants the justices to overturn their Florida Supreme Court counterparts, who mandated that Harris extend her certification deadline from Nov. 14 until Nov. 27.

Consider: Had the election been certified on Nov. 14 -- before hand counts added to Gore's total -- Bush would have won by 930 votes. And Gore would have gone to court to contest that outcome, asking for judge-approved recounts in Palm Beach, Miami-Dade and Broward counties.

With the court-imposed deadline on Nov. 27 -- but without the hand-reviewed ballots of Palm Beach, which missed the new deadline by hours, or Miami-Dade, which abandoned its recount effort -- Bush has been certified as the winner of the Florida election, this time with a 537-vote win. And Gore has gone to court to contest the outcome, asking for judge-approved recounts in Palm Beach, Miami-Dade and Nassau counties. On Tuesday, Florida Judge Sanders Sauls set a hearing in Gore's contest for Saturday -- one day after the U.S. Supreme Court hears the deadline dispute.

Some difference.

Indeed, some legal observers now believe Gore, though no one knew at the time how much trouble the Miami-Dade recount would prove, would actually have been better off rushing headlong into the original certification deadline and going straight to contest the outcome. "The state election law in contests after certification gives more power to judges, and that could easily be better for Gore," says Stephen Gillers, professor of law at New York University. "Leading up to certification, the law is more deferential to the secretary of state."

But the Supreme Court case is not entirely irrelevant.

Bush's brief, filed late Tuesday afternoon, lays out the issue in bold terms, offering the justices a chance to "imbue this election with finality." It may be true, says the Bush brief, that there seems to be little difference between a Gore contest two weeks ago and a contest today. But the votes certified Sunday night, Bush points out, "are substantially different" from two weeks ago. "Those differences may have significant consequence for the election contest challenge currently being mounted by Vice President Gore," the brief goes on. If the Supreme Court will turn back the clock, Gore's additional 1,300 recounted votes "will not be clothed with the presumption of correctness."

The point is simple, and far more limited than it seemed a few days ago: Bush would rather go to court with a 930-vote lead than a 537-vote lead.

Yet if the Bush legal team's plea for a Supreme Court ruling to "imbue this election with finality" now seems a stretch -- a symbolic statement rather than a conclusive legal gesture -- the underlying issues in the case have emerged looming larger than ever.

At the core of the case going to the U.S. Supreme Court Friday is a basic question: Did Florida's justices overreach their authority -- "legislate," as Bush has put it -- when they unanimously extended the recount deadline? Bush's Supreme Court brief puts it bluntly, referring over and over to the new deadline as "judicial legislation." The U.S. Constitution and federal laws, Bush says, leave it up to the legislature to determine how the state's electors will be chosen -- and require that the law be in place before Election Day. By extending the deadline, Bush's lawyers say, the Florida Supreme Court made new law that should be "nullified."

Those sentiments, says American University's Schwartz, have a history. "You have to see this case in the context of a long-term attack on judicial independence." It is an attempt to "delegitimize the judiciary" that goes back, he says, to the 1960s, when conservatives and segregationists angry with the expansive civil-liberties rulings of the Warren Court sported "Impeach Earl Warren" bumper stickers on their cars; and to the 1980s, when similarly expansive-minded state judges like California's Rose Bird or Penny White of Tennessee were challenged in elections by the right.

Indeed, Gore's brief to the Supreme Court makes much the same point. Far from "legislating," Florida's justices, Gore's legal team says, were playing "a familiar and quintessentially judicial role," sorting out ambiguities and conflicts in Florida's election laws. Extending the certification deadline "was an unremarkable construction of state statutes and state constitutional provisions."

Gore's legal team reaches back to the very foundations of the American legal system, quoting the pioneering Chief Justice John Marshall: "It is the province and duty of the judicial department to say what the law is." And the Gore brief describes Bush's charge of "judicial legislation" as "both fanciful and dangerous ... It would undermine the authority of the judiciary to decide the meaning of law."

It is that argument, Schwartz believes, which may well capture the attention of even as conservative a Supreme Court as the one headed by Chief Justice William Rehnquist. "If they accept the Bush argument, they've not only delegitimated the Florida Supreme Court. It would mean you can't trust any state court to interpret a state's laws. They'd be undermining their own ability to interpret law."

On the surface, the case seems an ironic states'-rights battleground, with Gore's partisans taking the local-control side usually occupied by conservative Federalist Society stalwarts like Bush's lead attorney, Ted Olsen. The Gore team, led by Harvard professor Laurence Tribe, argues as much in its brief.

But conservative calls for restraint from the federal courts have never been as simple as they sound. The legal right may often talk the language of states' rights. But in practice, conservative justices like Rehnquist and Clarence Thomas have taken on a rather different role: Rather than shifting power to the local level, they have taken authority away from courts and handed it to presidents, governors and legislatures less inclined than judges to expand civil rights. From prison wardens to presidents, the Rehnquist court has made executive-branch officials at both the state and federal level less accountable to the courts. The Bush team's argument before the U.S. Supreme Court -- which would make Harris' certification virtually unreviewable -- follows in this tradition, tying their strategy to this long-term assault on judicial authority rather than making it a "states' rights" case.

And arguments over "legitimacy" will likely be a central theme to emerge from Florida in the coming days. There is the perceived legitimacy of the votes in various counties, like Palm Beach or Miami-Dade; and the political legitimacy of the election winner, whomever that may be. But more broadly, there is the legitimacy of all the institutions now swept up in the whirlwind of the election -- every branch of federal and state government.

But it's the legitimacy of the Supreme Court's own decision-making that is likely to be on justices' minds when they convene on Friday. Chief Justice Rehnquist, one of the most politically engaged justices in the court's history, knows that the legacy of the conservative faction he heads rests with the outcome of the election. The Florida Supreme Court -- by chance made up entirely of Democrat-appointed judges -- may seem a convenient vehicle for extending conservatives' notions of "judicial restraint" (even if that "restraint" requires an unprecendented moment of Supreme Court activism).

But at the same time, even the court's most conservative justices are jealously protective of their prerogatives. The Bush brief -- with its sweeping attack on the Florida justices' interpretation of state election law as "judicial legislation" -- may simply hit too close to home. All the more so if the Supreme Court turns out to be as divided on the Bush case as the public was on the election: "If the Supreme Court decides this case 5-4, that will go a long way toward eroding the court's own legitimacy," warns Schwartz, saying the word over and over for emphasis: "It is the legitimacy of the Supreme Court, the legitimacy of state courts, that are really at issue."

By Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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2000 Elections Al Gore George W. Bush Supreme Court