Last Count for the Recount 

Oral argument from the court.
Dec. 12 2000 3:00 AM

Last Count for the Recount 

Justice Ginsburg looks white. We don't know how the decision to stay the recount came about this weekend, but there is something in her face and neck suggesting that at a conference, or in a phone call, or somewhere along a hallway this weekend, something was said, and it was taken personally. And Justice Scalia is almost-but-not-quite smirking as the justices take their seats on the bench. Most days, he can't stand being criticized, and you can bet he's been taking body blows all weekend. But today he can afford jolliness because he knows how it's going to go.

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Ted Olson, arguing for Bush, blasts the Florida Supreme Court in his opening salvo. They "changed statutory deadlines," they "changed meanings of words." But Justice Kennedy—he and Justice O'Connor are the swing votes who will select the next president—does what he did last week. "Show me a federal question," he commands. When Olson explains that the Florida court has no jurisdiction to review an act of the state legislature, pursuant to its grant of authority from the U.S. Constitution, Kennedy—for an instant—isn't buying. "Unmooring the legislature from its own constitution," he observes, "seems to have grave implications for our republican form of government." It is the first and last flicker of hope for Gore. Particularly when Olson concedes that his suggestion that there never be any appellate review of state voting laws, "may not be my most powerful argument."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

"I think that's right," rejoins Kennedy. Justice Stevens and Ginsburg ask whether the Florida courts have any role to play under Olson's theory. His response: The legislature never intended to divest itself of its authority. The legislature is a jealous god.

Justice Souter then launches into a colloquy about whether the Florida court was engaged, last Friday, in an act of legislating or interpreting. He warns Olson, "Unless you can convince us that in construing Section 168 [of its own laws] the Florida Supreme Court has passed the bounds of legitimate statutory construction, I don't see how we can find an Article II violation." This is not information-gathering. It's a threat. Souter won't reverse the Florida Supremes on the Article II or U.S. Code 3, Section 5 grounds.

Kennedy, seeing that he can't get a consensus on the Article II or the U.S. Code claims, changes tacks. If they can't agree on the hard issue, rule on the easy one: It's Equal Protection time. The Bush briefs argue that it's unfair to use different standards to count votes in different counties. This issue seems to hold some appeal for Justices Breyer and Souter. Breyer tries to pin Olson down to some uniform standard for gauging voter intent. Olson declines to name a standard (since it would really suck for him if the case were remanded back to Florida with instructions to follow the "Olson Standard"). He ignores Breyer and Kennedy and Souter on this issue until Souter gets him to admit that any articulation of a standard by the judiciary would have violated Article II of the U.S. Constitution. Nietzsche said: God is dead. So is judicial review.

Scalia—sounding like he wants to be doing Olson's job more than Olson does—reminds him that his legal predicate is that recounts (and thus standards for recounts) are only triggered in cases of machine-, as opposed to voter-malfunction. His colleague Joseph Klock, representing the Florida secretary of state, piles on, regarding a fair standard for measuring voter intent. Klock states that only the legislature should set such a standard and adds that if as a legislator he had to create a standard, it would be: "You have to punch through. The problem here was created by people who didn't follow instructions." Again, I find myself wishing that we could do this without the gratuitous attacks on less-than-perfect voters. Nietzsche also said, "There cannot be a God because if there were one, I could not believe that I was not He." 

Klock messes up his apostles, calling Stevens "Brennan" and then tagging Souter "Breyer." Scalia kindly helps out with this: "I'm Scalia." They do another twirl around the floor on the issue of the people being stupid as opposed to the machines being broken.

For those of you who were playing Supreme Court dispatchers at home today with the audio, the "Where's Waldo?" award goes to Laurence Tribe who was not at counsel table with David Boies, who is representing Al Gore today. Now that's a constitutional crisis. Benching Tribe probably has a dozen different explanations, but my favorite theory is that sending Tribe before the court to argue federal constitutional issues suggests that there are federal constitutional issues. Gore's premise is that there are not. Putting Boies up there to argue state law makes that point, but too little and too late.

Too little (defense against the Equal Protection claim) and too late (the deadline's tomorrow) could be Gore's epitaph, and the reason the court cannot grant Gore the relief he seeks. There's no way to set a fair standard in time. Kennedy gets Boies to concede that the Florida Legislature couldn't do what the Florida Supremes did without promulgating a "new law." Boies insists (he's channeling Tribe now) that this was not a new law, just an interpretation of existing law.

Here's where I call my bookie and double-down on the $20 I put on Bush after Saturday: O'Connor confesses that the Florida Supreme Court's decision to ignore their questions from last week is a "concern." She's upset their instructions were bypassed. This is very bad news for Boies. He hasn't taken his eyes off the swing shift of Kennedy and O'Connor all morning. He must persuade one of them to defect to his side or he loses. Rehnquist and Scalia are annoyed that Boies keeps interrupting them, but he wasn't counting on their votes anyway. Again it's Kennedy who shifts focus from the judicial-overreaching analysis to the Equal Protection questions. Something about kicking dogs.

Boies tries to justify using "standards" over "rules." He argues that every facet of the law—juries, criminal law, local government law—is fraught with a subjective "intent" component. But Souter, speaking for "Breyer and a lot of us," explains that the lack of objective rules from county to county is troubling. And it looks suddenly like it could be a 7-2 decision on the Equal Protection claim.

So, we're at the "too late" part. Souter concedes that even if the court could fashion an objective chad-standard, "we can't send this back for more fact-finding." Boies tries to offer him a fair standard. "Count every vote," grins Scalia.

Stevens, who looks like he's been drinking what Ginsburg has been drinking and sounds like he wants to be doing Boies' job more than Boies does, tells him to explain to the court that uniformity comes with a judge reviewing all the results. Boies insists that it was simply not difficult for Palm Beach County to discern "the clear intent of the voters" on hundreds of ballots. He insists that Florida statutes and case law provide that voter intent matters. But in failing to give them a bright-line rule with which to measure voter intent, he is not winning justices or influencing people. And when Kennedy says the words "very troubled" again and Rehnquist reminds him that tomorrow is the deadline, Boies starts looking about ready to call his bookie too.

Boies finishes with the argument that the Equal Protection violation inherent in having some counties with crappy voting mechanisms is far more egregious than the Equal Protection violation of counting chad differently. Too little. Too late.

One of the great mysteries of my job is the dear friendship that has sprung up between Justices Ginsburg and Scalia. Until today, when it occurs to me that they each represent one divine quality. Ginsburg is a merciful god. Scalia is just. The idea was supposed to be that combining these orientations might create one quasi-divine federal being. Except combining the two qualities is virtually impossible. Ask Job. So Voltaire once wrote that if God didn't exist, it would be necessary for us to invent him. We did, and we called it the U.S. Supreme Court. But the court, like us, proved to be human in the end.

This is not a constitutional crisis.  It's a theological one.

Click here to listen to audio of the oral argument.