Supreme Contest

By ADAM COHEN

If you were within earshot of a television early last week, you heard the consensus of the legal pundits. Florida's Supreme Court was running scared. It had been slapped down by the U.S. Supreme Court Monday and told to rethink its decision ordering manual recounts. And the experts were fixated on the fact that at oral argument last Thursday, Chief Justice Charles T. Wells asked whether his court even had a right to hear the case. The Florida justices, conventional wisdom held, were looking for a way to bow out gracefully from a showdown with the U.S. Supreme Court.

But the Florida court defied expectations last Friday and handed down one of the nerviest decisions in the annals of American law. A bitterly divided 4-3 court ordered that every Florida county tabulate or recount its undervotes. The ruling had Gore partisans extolling the noble tradition of an independent Judiciary--the one actor, in a state run by Republican Governor Jeb Bush and Republican ally Katherine Harris, free to do the right thing. But to the Bush camp, the Florida justices were just liberal power grabbers, intent on overturning a certified election result favoring the Republicans. Florida house speaker Tom Feeney blasted a renegade court, "more partisan than judicial."

Within 24 hours, the U.S. Supreme Court weighed in with a bitterly divided blockbuster of its own: a 5-4 order directing the Florida canvassing boards to halt the recounts. Once again, the reaction was divided and partisan, but flipped in a fun-house mirror. This time, it was the Bush camp's James Baker saying it was "very, very gratifying" that the U.S. Supreme Court had "indicated a willingness and an interest in hearing this very, very important case." And it was the Gore campaign charging that a court was trying to hijack the will of the people.

The high court's dramatic order set the stage for what may be the greatest clash of courts in American history. As the U.S. Supreme Court considers the case this week, the debate will be phrased in legal niceties: deference to state courts vs. deference to state legislatures; Article II of the U.S. Constitution and 3 U.S.C. Sec. 5. But beneath the law talk is a power struggle of epic proportions. The stakes could hardly be higher. How the U.S. Supreme Court rules could, of course, determine the next President of the United States. But something even larger is hanging in the balance: whether Americans will continue to have faith in the courts, the rule of law and the integrity of the democratic process.

A showdown between the Florida and the U.S. Supreme courts is really no contest. Under federalism, the U.S. Supreme Court can overrule state courts where issues of federal law are involved. But the real drama lies in whether five Justices will actually decide to do that. Unlike the high court's first ruling in the case, which was carefully if precariously unanimous, the latest one broke down in just the ideological way everyone had hoped to avoid. The five conservatives--Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Anthony Kennedy, Antonin Scalia and Clarence Thomas--voted to issue the stay. The four liberals--Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter--voted to let the counts go on.

It seemed clear at oral argument in the first round that the Justices were split on partisan grounds. "The most worrisome thing," says University of Chicago law professor Cass Sunstein, "was that the conservatives just gave Gore's lawyer a hard time, and vice versa." And the curt order the court issued Saturday showed the rift is still there. The dissenters issued a stern rebuke to the majority. By stopping the recount, Justice Stevens wrote for all four dissenters, the majority was abandoning its "venerable rules," including the well-established principle of deferring to state courts on questions of state law. The dissenters concluded that the majority had "acted unwisely"--which passes for serious trash talk on the high court.

The court may ultimately break down along these same partisan lines. Justice Scalia, the court's most conservative member, all but boasted in a short opinion that his side would have the votes in the end. That the stay was issued at all, he wrote, "suggests that a majority of the Court" believes Bush has "a substantial probability of success." But it may be significant that, unlike the four-person dissent, Scalia's concurrence was signed by him alone. The Democrats are already talking about peeling away a moderate member of the conservative bloc--Kennedy or possibly O'Connor. Until a ruling comes down, those two Justices will be two of the most powerful people on the planet.

The battle of the courts started with the Florida justices, and it's hard to overstate the boldness of their sweeping recount order. American courts have certainly been historic before: ordering public schools to admit blacks in the 1950s and helping oust President Richard M. Nixon by ordering him to turn over the Watergate tapes in the 1970s. But those decisions were handed down by the U.S. Supreme Court, steeped in prestige and equal in the Constitutional scheme to the President or Congress. The Florida court is made of seven people even most Floridians couldn't have picked out of a lineup two weeks ago.

Making its work tougher still, this Florida Supreme Court was besieged by rivals on all sides. Above, the U.S. Supreme Court has overturned it once, and some say the Republican majority there might be willing to do it again this week. Below, Judge N. Sanders Sauls of the Leon County Circuit Court, who has been at odds with the Florida Supreme Court for years, had declined to order recounts. In Atlanta, a federal appeals court was considering a Bush lawsuit aiming to throw out all the recounts. And in Tallahassee, the Florida legislature--another old enemy--has been threatening to ignore the court and simply select the Bush Electoral College delegates. As for Jeb Bush, he was feuding with the Florida justices even before they tried to make it more difficult for his brother to reach the White House.

There were deep divisions as well in the Florida Supreme Court's own ranks. It is Jurisprudence 101 that when a court delivers a bombshell decision, the judges struggle to be unanimous. But the Florida court split 4-3, and the rift was a bitter one. Attached to the court's ruling was a dissent from the Chief Justice warning that the majority risked sending the nation into "an unprecedented and unnecessary constitutional crisis"--a powerful built-in sound bite for critics waiting to tear the majority decision apart.

The striking thing about the division on the court was how unexpected the fault lines were. The breakdown was not along party lines: six of the seven justices are Democrats. Nor was it ideological: Leander J. Shaw Jr., one of the court's most liberal members, dissented. And political paybacks don't seem to have carried the day. Peggy A. Quince--the one justice whose credentials were signed by Jeb Bush--ruled for Gore. In fact, the only pattern to emerge was generational: the four justices most recently appointed to the court all sided with Gore.

Still, court watchers like to try to find correlations between a judge's background and how he decides cases. And biography may have played a role in this one. The Florida Four--the justices who voted for the recounts--are all outsiders of one sort or another. Quince has spoken publicly about facing racism and sexism in her career: at her first trial as a lawyer, the judge assumed she was the defendant. (And at the first oral argument in this case, when other justices were scrupulously referred to as "Your Honor," Quince was at one point addressed as "Ma'am.') Harry Lee Anstead, who is white, was raised by a single mother in a housing project. R. Fred Lewis, a native of West Virginia, keeps a dish of coal dust on his desk to remind him of his family's coal-mining origins. Barbara J. Pariente, who is Jewish, was raised in an affluent New Jersey suburb by parents who did not attend college. "Although I had the benefits of my father working very hard," she once said, "I understood he had to work very hard for what we had."

The Florida Supreme Court majority did its best to craft an armored tank of a decision: one that would stand up to the legal bazookas and hand grenades the Republicans would be aiming at it. The decision's most quotable passages are its sweeping appeals to the nation's most cherished common values: "This Presidential election has demonstrated the vulnerability of what we believe to be a bedrock principle of democracy: that every vote counts." But below the surface, in the arguments and citations, the majority was busily building in every legal defense it could muster.

The court clearly knew that reversal by the U.S. Supreme Court was a possibility, and it worked hard to address the high court's concerns. The U.S. court believed that the Florida one, by relying in part on its interpretation of the state constitution rather than on its statutes, may have substituted its own judgment for the rules laid out by the legislature. It was not clear, the U.S. court said, that the Florida justices adequately took into account two federal laws that speak to that point: Article II of the U.S. Constitution, which authorizes state legislatures to determine the "manner" of selecting electors, and 3 U.S.C. Sec. 5, a federal statute governing controversies over the appointment of electors.

The Florida justices began their decision by meeting these concerns head-on. The first words of their legal analysis are "Article II." And the first page contains a lengthy quote from 3 U.S.C. Sec. 5. The Florida Supreme Court emphasized that the Florida legislature's statutes "govern our decision today." And to underscore that point, the decision was heavily marbled with references to state statutes.

But some court watchers think that may not have been enough. When the U.S. Supreme Court issued its ruling vacating the Florida Supreme Court's first decision, it directed the Florida justices to provide a clearer explanation for their reasoning. At the time it issued its ruling ordering the recounts, the Florida court still had not attended to that homework assignment from on high. It can be argued that the court addressed it implicitly in its new decision, which avoided making the same mistake, or that the first ruling has been overtaken by events. Still, the U.S. Supreme Court is not used to being ignored.

As it put together its decision, though, the Florida Supreme Court had other adversaries to worry about. There was already bad blood between the justices and Judge Sauls, the trial court judge whose decision they were reviewing. In 1998, in a highly unusual move, they summoned then Chief Judge Sauls to discuss charges by courthouse employees and other judges that he was running the Leon County Circuit Court in a dictatorial fashion. Stung by the criticism, Sauls resigned as chief judge. In accepting the resignation, the justices cited "the continuing disruption in the administration of justice" under his stewardship. Sauls was outraged. "He told me that he could not believe that the Supreme Court justices, of all people, were not interested in the facts," his wife told the New York Times.

Even in friendlier circumstances, reversing a trial court is a tricky business. Appellate courts must be careful about second-guessing lower courts on facts, which the trial judge has often seen firsthand. They have more leeway in reversing for mistakes of law. The Florida justices shrewdly based their decision on what they say were legal mistakes by Judge Sauls on standard of review and burden of proof. Decisions of the canvassing boards do not deserve the highly deferential "abuse of discretion" standard Judge Sauls applied in deciding not to second-guess them, the Florida justices said. Better still, the court found that he wrongly held the Gore plaintiffs to an onerous "standard of a reasonable probability" of a recount changing the outcome; it said he failed to notice that the relevant statute had been changed last year. Ouch.

The court also waged a frontal assault on Judge Sauls' fact finding. The justices rejected his conclusion that Gore had not met his burden of showing that sufficient legal votes were rejected to warrant a recount. In part, they relied on what they called "the ultimate Catch-22" in Judge Sauls' approach: he had concluded there were not enough rejected votes without ever looking at the ballots themselves.

The Florida Supreme Court tried to build in protections against the Bush campaign's federal attack. A key Republican claim has been that the recounts violate the 14th Amendment's equal-protection guarantee because they were occurring in some counties and not in others. The effect, the Republicans said, was to give extra voting rights to citizens in counties that have recounts. The justices' response was, once again, shrewd: order undervotes counted in all counties, and no one is legally disadvantaged.

Despite its heavy fortifications, the Florida Supreme Court's decision may yet be vanquished. One of the best clues right now to the U.S. Supreme Court's concerns may be Scalia's brief concurrence to the stay order. In it, he expresses doubt--as Florida Chief Justice Wells did in his own dissent--about the constitutionality of letting the standard for counting hanging chads and dimples vary from county to county. And Scalia raises the long-standing Republican concern that multiple recounts may lead to degradation of ballots.

One of the most intriguing issues is the question of irreparable harm. To get a stay, a party has to show it will suffer permanent damage without it. The damage of halting the count seems clear: it will be hard for Gore to win the election if the counting is put off much longer. But it is Bush who got the stay--and Bush who the majority said would be harmed if the counting continued. What would the harm be? It could, Scalia writes, cast "a cloud upon what he claims to be the legitimacy of his election." It's a tricky argument: if the court wants to throw out the votes in the end, it would still be free to do so. But Scalia seems to be admitting that the court is afraid that once the votes are counted--once the genie is out of the bottle--the American public won't believe that the votes should in fact be set aside. Of course, it seems all but inevitable the ballots will ultimately be counted, either by the media or by academics looking to determine who actually won in Florida. If Bush does not in fact have the most votes, it's not clear that delaying the count until after Inauguration Day will prevent a "cloud" from forming over his presidency.

What will happen? The U.S. Supreme Court stay was certainly a major blow to the Gore camp. But Republicans who think it's all over may be celebrating too soon. Predicting how Supreme Court Justices will vote is, even in mundane times, a perilous game. Conservatives have sometimes been disappointed by Kennedy, who has voted with liberals on issues like gay rights and school prayer. And right-to-lifers once counted on O'Connor to provide a fifth vote to overturn the abortion protections of Roe v. Wade, something she has resisted.

These predictions are all the more perilous when, as now, the Justices have a rendezvous with history. The votes of the nine Justices in this case will not only determine their own reputations but, quite likely, the reputation of the U.S. Supreme Court for years to come.

--With reporting by Viveca Novak/Washington and Timothy Roche/Tallahassee

With reporting by Viveca Novak/Washington and Timothy Roche/Tallahassee