This is hardly the first usurpation of legislative and executive power by state and federal courts in recent decades. The California Supreme Court strained the limits of sophistry to strike down every death sentence it could during the reign of Chief Justice Rose Bird. The Vermont Supreme Court last year invented a state constitutional right to gay quasi-marriage. Such usurpations have become so common as to seem almost unremarkable.
While judicial legislation has come mostly from the left in recent decades, and the backlash from the right, it has not always been thus. "The Constitution ... is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please," Thomas Jefferson said in 1819, in one of many complaints about Chief Justice John Marshall's muscular assertions of judicial power. Marshall won that argument: He has gone down in history as the greatest chief justice.
Another president, Abraham Lincoln, won a historic argument with another chief justice, Roger Taney, when Lincoln made sustained attacks on the court's infamous 1857 Dred Scott decision, which held that black slaves were not citizens and had no rights under the Constitution. "If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made," Lincoln said in 1861, "the people will have ceased to be their own rulers." The Civil War and postwar constitutional amendments threw Dred Scott on the ash heap of history--at fearsome cost.
Later came Franklin Delano Roosevelt's legendary battle with the then-conservative court. By striking down major New Deal laws, the "nine old men" sent Democrats into a rage about judicial imperialism. "The Court," FDR said in 1937, "has improperly set itself up as ... a superlegislature ... reading into the Constitution words and implications which are not there, and which were never intended to be there." Although FDR's court-packing plan failed, the justices beat a strategic retreat. And FDR was able to remake the court by appointing seven new justices between 1937 and 1941.
It is sometimes debatable where heroic judicial statesmanship leaves off and judicial imperialism begins, especially in the wake of the Warren Court's bold 1954 decision striking down state-sponsored school segregation. Court-ordered desegregation infuriated many Southerners and troubled leading scholars who felt the Constitution gave no mandate for a court to take so a momentous a step. But the justices, fortified by unanimity, found their mandate in the emerging consensus that American apartheid was a great evil. By taking the lead on racial justice, the court--and other courts around the country--amassed a vast stock of moral capital. This has helped sustain their prestige through many less justifiable (or at least more debatable) exercises in activism in the ensuing 46 years. The Warren Court's example has also inspired many state Supreme Courts to get into the judicial legislation game themselves.
But the current spectacle--a state court trying to reverse the outcome of a presidential election by rewriting the vote-counting rules--is unprecedented. And the Florida court has reached a new zenith of judicial arrogance, seeming even to thumb its nose at the U.S. Supreme Court. It issued Friday's shocker without even bothering to respond to the unanimous U.S. Supreme Court decision four days previous vacating its earlier (Nov. 21) pro-Gore decision in a closely related case. The nine justices had remanded that case to the Florida court with instructions to think again before changing the rules after the election--and, this time, to pay attention to the U.S. Constitution and laws. The Florida court also all but ordered a statewide manual recount by some 60 counties that were not even parties to the case. Such a naked assumption of judicial power is almost unheard of.
The three dissenters' criticisms went largely unanswered, probably because no good answers exist. The decision "has no foundation in the law of Florida as it existed on Nov. 7," wrote Chief Justice Wells. "I have a deep and abiding concern that the prolonging of the judicial process in this counting contest propels this country and state into an unprecedented and unnecessary constitutional crisis. ... Judicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters--not by judges." Quoting a professor's observation that "the margin of error in this election is far greater than the margin of victory, no matter who wins," Wells concluded: "Further judicial process will not change this self-evident fact and will only result in confusion and disorder."
In other words, this is not a case of judges boldly sweeping away legal technicalities in pursuit of fairness. The Florida court's decision is not only lawless but also patently unfair. The recounts so far have involved shifting and unreliable standards for interpreting dimpled chad, inconsistencies from county to county and even within Miami-Dade County, and flagrantly biased chad-interpretation by Broward County's Democratic vote-counters. The Florida court has done nothing to cure these violations of due process in the new counts it has ordered.
The purported goal has been to vindicate "the will of the people," but this process measures mainly the will of the vote-counters. And the Florida court's purported devotion to the will of the people seems strangely selective. On Sept. 7, for example, it struck down an amendment to the state constitution, adopted by 73 percent of the voters, that was designed to curb the court's own power to prevent executions. The less-than-plausible rationale: The voters had been confused by the ballot language.
Unless reversed by the U.S. Supreme Court, the Florida court risks getting such respect as it deserves from the state legislature and from Republicans in Congress. Our tradition of acquiescing even in highly controversial judicial decisions is vital to the stability of our society, and the backlash against the Florida court is dangerous. But the alternative may be to let unelected politicians on the bench pick our president by a margin of a single vote. In this matter, at least, the Florida Legislature and Congress owe no deference to a lawless state court.
The rule of law is not the rule of judges and lawyers. Judicial imperialism threatens the very stability that we habitually seek to preserve when we acquiesce in court decisions that we find wrong or even outrageous. The Florida court has sown the wind. Wiser heads at the U.S. Supreme Court may yet save us from reaping the whirlwind. Here's hoping (if a bit forlornly) that they can find a way to do it unanimously.