Will Brethren Rule for Brethren to Protect All Courts?

WASHINGTON —  Court watchers said the U.S. Supreme Court would never touch the Florida recount mess. They were wrong. Then the wise ones split: Some argued that the court was merely being courteous, lending its legitimacy to help move the country toward a resolution; others presented the case as another opportunity for Chief Justice William H. Rehnquist to add to his legacy of supporting states’ rights.

Both views are possible. But then again, there may be something else going on. As some of the questions during Friday’s oral arguments suggested, there is an awareness on the court of a need to secure the power and legitimacy of the judiciary. It is possible that some of the justices saw this case as a high-profile opportunity to do just that.

There is a comfortable appeal to the claim that it was the act of a benevolent Supreme Court, reluctantly riding in to help move the country past its electoral roadblock. But the limited scope of the question the court accepted for oral argument-- did the Florida Supreme Court exceed its authority when it extended the vote-counting period-- most certainly won’t settle the electoral dispute. New cases are underway in both the state and federal court systems, filed by both sides in the dispute, and the Supreme Court certainly knew that the case before it would not be the final word in disputed presidential election.

The second idea, that the Supreme Court is committed to states’ rights, doesn’t get us much farther. It is true that the Rehnquist court has handed down a series of decisions that protect the states against the expansion of national power. But these decisions resolved conflicts between state legislatures and Congress or the executive branch. They did not involve a conflict within a state--between a state legislature and a state judiciary--as is the case in Florida. After all, what is the states’ rights position in this election case? Would it be pro-states’ rights to enforce the Florida Legislature’s original statutes, which declared a specific deadline for the certification of the vote? Or would the pro-states’ rights position be to uphold the decision of the Florida Supreme Court, which tried to reconcile what Florida judges saw as a conflict of goals built into state statutes?

So the U.S. Supreme Court’s decision to hear arguments in the Florida case may have had little to do with national unity or states’ rights and much to do with showing support for the judiciary--for a state supreme court that has come under attack from politicians and pundits alike for interpreting the laws of its state legislature.

When a defiant James A. Baker III declared that the Florida Supreme Court’s ruling was “unacceptable,” he may have unknowingly--and, for his side, perhaps unfortunately--increased the likelihood that the Bush campaign’s appeal to the U.S. Supreme Court would be granted. Baker’s threat to incite the Florida Legislature into ignoring the court’s ruling may be a far more important challenge to the long-term legitimacy (and therefore power) of all courts in the United States. It is precisely this type of challenge that might alarm the court and spur it to take action.

The judiciary has no real power. Congress controls the purse strings, and the president commands the armed forces. The courts have little more than the power of the pen. Courts regularly rule on laws’ constitutionality, though the Constitution makes no explicit provision for the power of judicial review. No matter what the court says, unless Congress provides the funds and the executive branch supports its decisions, the court has little more than the power to persuade. Judicial legitimacy depends on the degree to which people agree to accept court rulings, even when they disagree with them. If elected officials and their respected advisors defy the courts, judicial authority and the rule of law are in deep trouble.

Baker’s intemperate charge, echoed on talk radio and in the editorial pages of many of the nation’s newspapers, wasn’t dangerous because he disagreed with what the Florida Supreme Court said. It was dangerous because it implied that one can simply refuse to abide by a decision with which one disagrees. There’s nothing wrong with disagreeing with court rulings, and there’s nothing wrong with working within the system to change those decisions through appeal, persuasion, legislation and, if need be, constitutional amendment. But simply refusing to abide by a decision is a direct threat to the judicial system in every state and at every level of the federal judiciary.

Three of the four American presidents memorialized in stone at Mount Rushmore had severe disagreements with the judicial branch. None directly refused to abide by court decisions. Hotly contested responses to the merits of a ruling are essential to a sturdy and vibrant republic; electrically charged rejections of a court itself could be fatal to it.

There is every reason to believe that Baker, among others, got the U.S. Supreme Court’s attention and may have contributed to the court’s decision to accept the case. Predicting what the court will do from here is anyone’s guess, since we are dealing with nine independent justices and a room full of well-researched legal briefs.

But when the justices’ opinions are released, read them closely. It’s a pretty good bet that concerns about respect for judicial decisions, legitimacy and legal authority won’t be hard to find. No one should be surprised if the U.S. Supreme Court uses this case as an opportunity to shore up the legitimacy of judicial discretion in the interpretation of conflicting state statutes by a state supreme court. A threat to one court very well may be seen as a threat to all courts.