Never in recent history have the courts looked so much like another bunch of partisan players in the political wars, camouflaged in black robes that cannot hide their partiality and willfulness. The worst may be yet to come: A 5-4 U.S. Supreme Court decision this week anointing George W. Bush president--with the more conservative justices outvoting the more liberal ones--would be hard to see as anything but evidence that either the majority or the dissenters (or both) were swayed by politics, not law. And although I haven't altogether given up hope for a unanimous decision, the smart money is betting on a bitter 5-4 split as the oral arguments (at 11 a.m. ET Monday) approach.
Election 2000--with the Republican-controlled Florida Legislature in open revolt against the Florida Supreme Court, with top Republicans in Washington trashing the Florida court as a bunch of political hacks, with top Democrats intimating the same of the 5-4 U.S. Supreme Court majority that stopped the Florida court's manual recounts in an interim order Saturday, with some of the justices themselves lobbing thinly veiled charges of hypocrisy back and forth--has been a disaster for the judiciary's image (at least in some circles) as politically impartial. The election aftermath may also have started a cycle that could destabilize the rule of law for years to come by launching a new era of warfare between imperial judges and other branches of government. The backlash against the Florida judges--and against others across the nation who are deemed to have usurped legislative and executive powers--will reverberate for a long time, in ways both foreseeable and unforeseeable.
Perhaps I should disclose my point of view: Speaking as one who opposes the death penalty, supports fairly liberal access to abortion and legislative recognition of gay partnerships, has never voted for a Republican presidential nominee, and whose views on many issues are closer to those of President Clinton than of George W. Bush, I am not agnostic about who is right and who is wrong in this.
In my view, the Florida Supreme Court's majority--not the U.S. Supreme Court--has betrayed its trust and done grave damage to the rule of law. The Florida court's stunning 4-3 decision on Friday looks like (even if it is not) a near-indefensible act of partisanship designed to flip a presidential election by commanding a rushed, chaotic, patently unfair manual recount process under circumstances virtually guaranteed to detract from--not to perfect--the accuracy and credibility of the final outcome. I say this as someone who would have supported a timely Gore request (say, a month ago) for a statewide manual recount, assuming the Florida courts could devise strict rules to minimize subjectivity, guesswork, and partisan bias in vote-counting.
But at this late date, the dissent by Florida Justice Major B. Harding, joined by Justice J. Leander Shaw, seems irrefutable: "Even if such [a statewide] recount were possible, speed would come at the expense of accuracy, and it would be difficult to put any faith or credibility in a vote total achieved under such chaotic conditions." Harding seemed to hint that the majority had slyly loaded the dice: "In effect, the majority is allowing the results of the statewide election to be determined by the manual recount in [majority-Democratic] Miami-Dade County because a statewide recount will be impossible to accomplish."
By the way, the dissenters, including Chief Justice Charles T. Wells--who said the decision "has no foundation in the law of Florida as it existed on Nov. 7"--were all appointed by Democratic governors, as were the other four Florida justices. Those inclined to disagree with the dissenters might ask: Would the Florida court's majority have shredded so many legal norms and plunged the nation into so unnecessary a crisis had it been George W. Bush asking for more last-minute manual recounts to put him over the top? Would the three dissenters have been so eloquently passionate had this been an even-handed effort to count all valid votes? Would the liberal aristocracy whose views predominate on the New York Times editorial page (not to mention its front page) be complaining so indignantly that the U.S. Supreme Court should stay out and mind its own business if this were an all-Republican supreme court in a Southern state working furiously to push Bush over the top?
But I digress. Back to the backlash forecast: It will be spearheaded by conservatives, who have long been outraged at liberal judicial legislation on issues including abortion, religion, and race, and who have noticed that the current Supreme Court--long labeled "conservative" in the media--is considerably more liberal than public opinion on issues including partial-birth abortion, religion, and gay rights. The backlash will also win qualified support from centrists who (like me) consider judicial legislation an unhealthy way to make policy even when we like the results. This in turn could provoke a tit-for-tat response from some liberals, who have already begun attacking the U.S. Supreme Court for sweeping aside liberal legislation and who now seek to delegitimize its apparent determination to check the Florida court's reckless adventurism.
In Florida and elsewhere, conservatives will push to make state judges at all levels more responsive to public opinion by subjecting them more and more to contested elections, complete with the sleazy fund raising and demagogic campaign ads that already pollute some judicial elections. The bubbling movement to circumvent or even defy such U.S. Supreme Court rulings as the one barring student-led prayer at high-school football games could come to a boil. In Washington, it may become virtually impossible for judicial nominees who are not ciphers to win Senate confirmation. And we may see a new era of congressional--and perhaps presidential--efforts to strip the federal courts of power to decide issues such as school prayer and partial-birth abortion.
Judicial supremacy in all things has long been taken as a given by many liberals and others who think the law is whatever the judges say it is (just as they used to see the independent-counsel statute as a great idea, until it started chewing up Democrats). Hence the knee-jerk denunciations by editorial writers and others of the Florida Legislature's moves to reclaim its exclusive mandate under the U.S. Constitution to determine the manner of choosing presidential electors. But others (including me) ask: What are we supposed to do when courts entrusted with insuring the rule of law betray that trust? When willful judges make up laws to suit their politics in the guise of interpretation?
When carried to extremes, this is the very definition of a constitutional crisis, for there is no way for other branches of government to respond that is free from danger. If they are cowed into acquiescence by court-worship, we drift toward illegitimate judicial tyranny. But if they defy the judiciary, chaos could ensue. That's why judicial self-restraint is far more than a conservative cliché. It is a tattered but vital tradition in which we all have an enormous stake.
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.