U.S. Supreme Court: "The case is submitted"

Justices consider whether Florida's high court overstepped, and if it did, whether it's a federal matter.


Jake Tapper
December 2, 2000 2:32AM (UTC)

It's the place to be Friday morning. An A-list affair with lines down the block to get in.

One pew alone features, from left to right: Bill Daley and Warren Christopher of Vice President Al Gore's team; former GOP Senate Majority Leader Howard Baker of Tennessee; Sen. Fred Thompson, R-Tenn.; Barbara Olson, conservative activist and the wife of Gov. George W. Bush's lead attorney; and Sen. Ted Kennedy, D-Mass.

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Karenna Gore Schiff is in the house, as is the Republican governor of Michigan, John Engler, and the chairman of the Palm Beach canvassing board, Judge Charles Burton. Florida GOP chairman Al Cardenas is here, with losing Senate candidate Rep. Bill McCollom, R-Fla., by his side. As are Gore veep short-lister Sen. John Edwards, D-N.C., and former Clinton Justice Department Microsoft nemesis Joel Klein.

In a show of solidarity, the chairman and ranking Democrat of the Senate Judiciary Committee, Sens. Orrin Hatch, R-Utah, and Patrick Leahy, D-Vt., walk over to the hearing together.

But Hatch and Leahy's brief bipartisan stroll ends at the U.S. Supreme Court building, and that's where any figurative common ground ends as well. The justices are here to consider arguments in a Bush petition maintaining that the Florida Supreme Court overstepped its bounds when it extended the final state ballot certification deadline from Nov. 14 to Nov. 26 so some counties could finish their manual recounts.

"The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States!" bellows the marshal. "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting! God save the United States and this Honorable Court!"

Sitting in the center, high atop the mahogany mountain, Chief Justice William Rehnquist gets right to business. "We'll hear arguments this morning in No. 00836, George W. Bush vs. the Palm Beach County Canvassing Board," he says. "Mr. Olson?"

Theodore Olson steps up and immediately addresses what many feel is the weakest claim in the Bush argument -- that the issue here involves a federal law and necessitates the court's attention.

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"The election code that the Florida Legislature developed [for elections] conformed to Title 3, Section 5 of the United States Code," Olson says. "That provision invites states to devise rules in advance of an election to govern the counting of votes and the settling of election controversies." The Florida high court made new rules after the election, Olson argues.

But Olson is scarcely two minutes into his opening statement when Justice Sandra Day O'Connor, seated immediately to Rehnquist's left, jumps in.

"Well, Mr. Olson, isn't Section 5 sort of a safe-harbor provision for states?" she asks. "And do you think that it gives some independent right of a candidate to overturn a Florida decision based on that section? I would have thought it was a section designed in the case some election contest ends up before the Congress, a factor that the Congress can look at in resolving such a dispute. I just don't quite understand how it would be independently enforceable."

After all, as Justice Anthony Kennedy, immediately to O'Connor's left, says, "We're looking for a federal issue."

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Justices John Paul Stevens, Antonin Scalia and Stephen Breyer also get down in there, mixing it up, probing and poking and examining Olson's position. Scalia asks Olson if he would hold Florida to such a tough standard if this were a debate about speed limits and highway funding? Stevens points out that Olson's whole argument is "based on the premise that the Florida court overturned something that the statute had done. Is it not arguable, at least, that all they did was fill gaps that had not been addressed before?"

Justice Ruth Bader Ginsburg seems perhaps the least convinced that she and her colleagues should overrule their Florida counterparts. In "even the very cases that you cite, as I checked them," she notes, the high court ruled "that we owe the highest respect to the state court when it says what the state law is."

Olson responds with language perhaps better suited to a press conference than to the hallowed atmosphere in this historic room, with its maroon and golden curtains and sculpted marble portraits of, among others, Moses, Solomon, Confucius, Hammurabi and Charlemagne.

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"I would emphasize that what the Florida Supreme Court did is basically, essentially, say, 'We're rewriting the statute. We're changing it,'" Olson says.

Ginsburg then asks Olson, appearing to take him to task, "Would you agree that, when we read a state court decision, we should read it in the light most favorable to the integrity of the state Supreme Court?" Ginsburg argues that if there are two possible readings of the Florida court's ruling -- "one that would impute to that court injudicial behavior, lack of integrity, indeed dishonesty, and the other that would read the opinion to say we think this court is attempting to construe the state law but it may have been wrong, we might have interpreted it differently, but we are not the arbiters, they are" -- then why should the highest court in the land assume the worst?

In deference to her concern, Olson amends his earlier statement. "I don't mean to suggest, and I hope my words didn't, that there was a lack of integrity or any dishonesty by the Florida Supreme Court," Olson says. "What we're saying [is] that it was acting far outside the scope of its authority."

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But both sides get beat up in Supreme Court cases; it's the nature of the beast, since to make it so far up the judicial ladder both parties have to make compelling arguments. So Gore's main man, Harvard law professor Lawrence Tribe, undergoes the same ordeal. That is, after a few brief remarks from Joe Klock, the attorney for Florida Secretary of State and Bush state campaign co-chairwoman Katherine Harris, and Paul Hancock, representing Florida Attorney General and Gore state campaign chairman Bob Butterworth.

Tribe starts by slamming Olson's argument as merely a sound bite. "Although it is part of the popular culture to talk about how unfair it is to change the rules of the game, I think that misses the point when the game is over, and when it's over in a, kind of, photo finish that leaves people unsure who won," he says. "And then the question is: How do you develop great, sort of, greater certainty? And a rather common technique is a recount, sometimes a manual recount, sometimes taking more time ... It's nothing extraordinary."

Kennedy raises an eyebrow. "You're saying, no important policy in 3 U.S.C., Section 5?" he asks. "In fact, we change the rules after?"

Tribe backs down a bit: "Certainly, not, Justice Kennedy." But, he adds, "if you look at the language, I think it's really much too casual to say ... that all of the laws must stay fixed." Moreover, he says, "that's really not a question for this court, but rather for the Congress."

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So Tribe reads Section 5. "I'll just read what I think are the key words -- 'if a state--'"

"Can you tell us where you're reading from?" asks Justice Souter.

"Actually, I'm just reading from a copy of the U.S. Code, 3 U.S.C., Section 5, not from any -- a page I can identify directly ... "

"It's in the appendix to the petitioner's brief, I'm sure, isn't it?" Souter asks.

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"Yes, although I'm afraid I don't have it in front of me," Tribe apologizes.

"Page 3-A of the blue brief," Souter says.

"Thank you, Mr. Souter," Tribe says. He then adds, to laughter: "Page 3-A of the blue brief, I am reliably informed."

Rehnquist, acting as a comedic foil, tells Tribe that his humorous touch "won't get you an extra two minutes" -- a reference to the scant 45 minutes that each side has to present its case.

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Tribe reads the law in question, arguing that it provides for the courts to step in if need be, so no big deal, no harm, no foul. But O'Connor doesn't take to this. Clearly Florida law states that certification should take place on Nov. 12, she notes, and clearly the state Supreme Court changed that. "'Here is the certification date,'" she says, as if quoting the Legislature. "How could it have been clearer? ... Perhaps the Florida court has to be aware of the consequences to the state of changing the rules."

Rehnquist points to the Florida court's ruling itself, which examined a number of statutes that didn't meld well -- allowing manual recounts while not necessarily allowing enough time for them, for example. The chief justice says that the Florida jurists decided, "'Look, in the light of the Florida Constitution and the general rights [for citizens to vote and have their votes counted] conferred there, we're construing it this way.'" Tribe says that that the "provisions are in conflict" in the Florida law, so the Florida court took the state's emphasis on the right to vote and used it "as a tiebreaker."

"Mr. Tribe, I don't agree with that," Scalia says. "I don't think that the Florida Supreme Court used the Florida Constitution as a tool of interpretation of this statute ... I read the Florida court's opinion as quite clearly saying, having determined what the legislative intent was, we find that our state Constitution trumps that legislative intent. I don't think there's any other way to read it. And that is a real problem, it seems to me, under Article II" -- the provision of the Constitution that gives state legislatures the authority to decide how it selects its electors.

Scalia keeps needling Tribe, making it clear that he doesn't approve of the Florida court's ruling. "I just find it implausible that they [in the Florida Legislature] really invited the Florida Supreme Court to interpose the Florida Constitution between what they enacted by statute and the ultimate result of the election," Scalia says. O'Connor and Kennedy, too, seem rather skeptical and disapproving. Under questioning, Tribe at times steps back a little from his own arguments. He even appears to strain occasionally for new ones, at one point actually telling the justices that "disenfranchising people isn't very nice." Finally, Rehnquist calls it a day.

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"The case is submitted," he proclaims as the gavel goes BANG! Justice Clarence Thomas is, as usual, the only one who didn't speak.

The Supreme Court snack bar will be open Saturday, 8 a.m until 1 p.m., so the justices can sit and kibbitz and not worry about starving. Many of the justices didn't seem to truck to the Florida court's behavior, but will they think that they have the right to step in? As with so much in this presidential race and the post-election morass, a great deal hinges not only on one side's strength but on the other guy's weaknesses.


Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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