Dear Michael,
There was probably no good way for this battle to end, but as you suggest in your discussion of the court’s decision yesterday, the ending we have reached is about the worst that anyone could possibly have imagined. The court, having blundered heedlessly and gratuitously into a political contest that it should have avoided, found itself so bitterly divided—ideologically, politically, and legally—that it produced a confusing and confused hybrid of a decision that will satisfy no one. In what may well be the most controversial action it has taken in its entire history (and one of the most important), the court has chosen the next president of the United States on the basis of a muddled collection of arguments no one of which commands a majority even of the court itself. On the pretext of resolving a constitutional crisis, the court has come close to creating one.
George Bush would almost certainly have been elected president whatever the court did. Even had the recount run its course and even if Gore had prevailed (and there is no certainty that either of those things would have happened), Bush would almost certainly have won anyway. Katherine Harris, Jeb Bush, the Republicans in the Florida Legislature and the House of Representatives would have seen to that. Even that ugly and unhappy resolution of this conflict would have been better than for the court to arrogate to itself the selection of the next president on such flimsy and divided grounds.
And what of the arguments that the court advanced to defend this lamentable decision? At heart, it seems, the argument revolved around the standard being used to evaluate the ballot—an argument the court tried to resolve on equal protection grounds. There are legitimate reasons for concern about the varying standards for counting punch-card ballots, and I suppose it is technically possible to argue that these concerns rise to the level of equal protection. But the equal protection argument could just as easily (and in my opinion more plausibly) be used to support Gore’s position—that those voters whose votes were not tabulated, or even examined, were also denied equal protection. One could go further and argue that voters presented with the Rube Goldberg ballot in Palm Beach County were denied equal protection; other Florida voters had clear and lucid ballots, and they did not. One could argue that the overseas military personnel who cast absentee ballots at military post offices that did not provide postmarks were denied equal protection when their votes were not counted; that Bush voters who did not vote on Election Day because the networks called Florida for Gore before the polls closed were denied equal protection; that the people erroneously knocked off the voting rolls by Katherine Harris’ purge of felons (conducted by a private company that also purged many non-felons) were denied equal protection; that the black voters who were (if newspaper accounts are accurate) intimidated at the polls or deterred by police roadblocks were denied equal protection. Any election in any part of the United States could be invalidated by the Supreme Court’s reasoning if the language of the Fourteenth Amendment is extended to the clumsy and highly varied process of counting votes. Only in the highly partisan and ideological climate of this dispute, which the Supreme Court is supposed to transcend but clearly could not, would any jurist single out an inconsistent standard for evaluating dimpled chad as the basis for a major constitutional decision. I don’t believe the justices were acting cynically or were consciously doing whatever it took to ensure Bush’s election. But I also don’t believe that had the situation been reversed—had Bush been pushing for a recount to overcome an infinitesimal lead by Gore—that the court would have ruled in the same way.
More to the point, leaving the decision as to how to evaluate uncounted ballots to local election boards is entirely consistent with Florida law. That may be a flaw in the law—although given the wide variety of voting procedures in the state, it would be hard to expect the legislature to lay out detailed instructions for every conceivable recount. But flawed or not, it is the law. The U. S. Supreme Court itself sent back the Florida Supreme Court’s earlier recount decision because it was concerned that the decision was not based on Florida election law, which it claimed was paramount and trumped the Florida Constitution. That was probably one reason that the Florida court, in its second decision, declined to go beyond the law and lay out a clear standard itself. The U.S. court required strict adherence to Florida election laws when it suited them (as in deciding that the Dec. 12 deadline was sacrosanct) and blithely rejected those laws when it didn’t.
Justice Scalia, in his infamous press release last Saturday defending a decision that in theory had not yet been made, argued that the court was acting to protect the legitimacy of a Bush victory. I noted the other day that defending the political legitimacy of a presidential candidate is not a proper role for the Supreme Court. In any case, the court’s decision yesterday did more damage to Bush’s legitimacy (not to mention to its own) than anything else could possibly have done. This sharply divided electorate could have accepted, however unhappily, almost any political decision of this contest. But to watch the presidency of the United States being delivered to the Republican candidate by five Republican justices of the U.S. Supreme Court, over the bitter objections of their colleagues and on the basis of confused and (in my view, at least) flimsy reasoning, is an abhorrent spectacle that it will be very difficult for anyone—and for Democrats in particular—to accept or forget. Bush will always appear to many Americans as a president chosen not by the voters but by the court, and the taint of illegitimacy that he carries with him into the White House has the capacity to poison his presidency and the larger political climate for the next four years—and perhaps beyond.
I have heard from friends in the last few days who say that the court’s behavior in this matter has been the most shattering public event they have seen since the Kennedy assassination. I don’t see this moment as comparable to that great national trauma. Nor is it as damaging an event as the court’s explosive Dred Scott decision in 1857 or its abhorrent (but at the time relatively uncontroversial) Plessy decision in 1896. But this does indeed seem to me to be the most dismaying and shocking public event of our time. In an era when respect for the political system and the legitimacy of public institutions has already suffered terrible blows, the U.S. Supreme Court has violated all the norms of behavior that the judiciary has carefully created for itself, shattered its own image in the process, and undoubtedly confirmed the unwarranted belief among many Americans that our political system is hopelessly flawed and corrupt. That is not, I suspect, what Chief Justice Rehnquist and his colleagues had hoped history would remember them for.
