Did Justices, in Word and Deed, Tip Their Hand?

WASHINGTON —  In issuing an emergency order to halt the recount of Florida’s ballots, the U.S. Supreme Court all but cleared the way for Texas Gov. George W. Bush to win the presidency.

But by issuing the critical stay on a 5-4 vote strictly along ideological lines, the court simultaneously placed itself in the center of the partisan battling over the election, both liberal and conservative legal analysts said Saturday.

The majority justices, in the words of Justice Antonin Scalia, said that continuing to count the ballots would cause “irreparable harm” to Bush--the standard for issuing an emergency stay of a lower court order--by “casting a cloud” over the legitimacy of his election.

The minority, in a dissent written by Justice John Paul Stevens, said that “counting every legally cast vote cannot constitute irreparable harm.” The real harm was being inflicted on Al Gore, Stevens suggested, because of the fast-approaching deadline for choosing Florida’s electors.

In the end, however, some legal scholars worried that the harm most damaging to the country may be suffered by the court itself.

Monday morning, the justices will formally hear arguments from lawyers for both candidates in the case of George W. Bush vs. Albert Gore--the first case in Supreme Court history to have the names of two presidential contenders in its title.

But regardless of what follows, it may be too late now to complete the vote count before Tuesday, when disputes over electors are supposed to end.

‘Pretty Close to Game, Set and Match’

“The Supreme Court has made it absolutely impossible for Florida to complete the recount” in the time frame prescribed by the Electoral Count Act of 1887, said Pamela Karlan, a professor of law at Stanford University who clerked for the late Justice Harry A. Blackmun. “It’s pretty close to game, set and match.”

Because of those time constraints, Saturday’s ruling, while technically only a stay, was “functionally a ruling on the merits for Bush, paving the way for him to become president,” said USC constitutional law professor Erwin Chemerinsky.

But the problem for Bush--and potentially for the court, as well--is that the “legitimacy” of Bush’s victory will remain in doubt as long as the ballots remain uncounted in Florida, said University of Utah law professor Michael McConnell, who served as a Justice Department and White House lawyer under Ronald Reagan.

The reputation of both Bush and the court could suffer further if academics or news organizations eventually count the disputed votes--something that Florida’s open records laws makes quite likely--and discover that they favor Gore, he and others noted.

“I suppose the logic of it is that the court should say they should burn all the ballots,” McConnell said sarcastically.

But while Gore supporters might take some bittersweet consolation at the prospect of a later count, their chances in Monday’s oral argument are grim. As Scalia noted in the statement he issued along with Saturday’s stay, the court’s vote sends a strong signal as to how the justices will finally rule.

“It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner [Bush] has a substantial probability of success,” he wrote.

For the high court, granting an emergency order to block action means much more than simply a decision to consider a legal claim. Only four votes are needed for the court to decide to hear an appeal, and the decision to consider a case means only that the legal issue will be thoroughly reviewed.

But only a five-vote majority can issue an emergency stay. Under the court’s rules, the justices who vote for a stay are saying they believe not only that the lower court was wrong, but that its decision will do immediate damage unless it is halted.

“In a case like this, you can be pretty confident that if they grant a stay, the five votes are solid,” said Washington attorney Brad Berenson, a former law clerk for Justice Anthony M. Kennedy.

Even though the court regularly decides inflammatory disputes on such subjects as abortion, school prayer, the death penalty and civil rights, the justices generally take great care to insulate themselves from politics. Indeed, the high court is held in high esteem because its decisions are seen as legal, not political.

Lines Between Law, Politics Blurred

But this year’s postelection battle has blurred the lines between law and politics. Partisans on both sides have seen their opponents as twisting the law for political gain. Just as Republican activists have noted that the Florida Supreme Court is made up entirely of justices appointed by Democratic governors, Democrats have noted that seven of the U.S. Supreme Court’s nine justices--including all five who voted for Bush on Saturday--were appointed by Republican presidents.

“Perhaps the biggest irony is the fact that a man who says he is a uniter, not a divider, may become president by dividing every conceivable institution in America--the populace, the Florida Legislature, the Florida Supreme Court and now the U.S. Supreme Court,” said Yale Law School professor Akhil Reed Amar, author of a book on the Bill of Rights.

“The bonds of union are being snapped,” he said. “This did not have to happen.”

One prominent historian of the court went so far as to compare the ruling with the case that is almost universally considered the Supreme Court’s lowest moment--the 1857 ruling that helped spark the Civil War by holding that Congress could take no action to restrict slavery in U.S. territories.

“The question is will this be another self-inflicted wound--like Dred Scott, where the court thought it could solve a political problem and didn’t,” said Stanford University history professor Jack Rakove, whose book on the court, “Original Meanings: Politics and Ideas in the Making of the Constitution,” won the Pulitzer Prize.

“This is the logical conclusion of the legalization of political conflict,” Rakove said. “The boundaries of what is legal and what is political have now become completely impermeable.”

More conservative legal scholars agreed that the decision could cause harm to the high court, but decried that result as unfair.

The Florida Supreme Court, in its decision on Friday that ordered a statewide recount of some ballots, created chaos and “thumbed its nose at the U.S. Supreme Court,” said UC Berkeley law professor John C. Yoo, who served as a law clerk to Justice Clarence Thomas.

“Obviously those who don’t like this outcome will criticize the U.S. Supreme Court,” Yoo said. “Some people will say the court acted politically, but you have to balance that against restoring political stability to the country. Clearly they made that trade-off, trying to guarantee a smoother transition” from this election to the next president.

Legitimacy Issue Raised by Stevens

The potential impact on the court appeared to be one of the concerns on Stevens’ mind in his dissent. “Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election,” said his statement, which was joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

But Scalia sharply disagreed. “The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush] and to the country, by casting a cloud upon what he claims to be the legitimacy of his election,” he wrote.

Scalia, whom Bush had praised during the campaign as his favorite justice, was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Kennedy and Thomas.

Saturday’s order marked the second time the justices had intervened at the behest of Bush’s lawyers.

Two weeks ago, when the Florida high court extended the time for hand recounts, the Supreme Court voted to review that decision. No emergency stay was issued then because Bush’s lawyers did not ask for one.

During the oral argument in that case, the justices sounded as though they were split along ideological grounds. But over the ensuing weekend, they reached a compromise on a short, unanimous opinion that voided the earlier state Supreme Court ruling, sent the case back to be reconsidered and kept the high court away from making the conclusive decision.

Since then, that earlier decision has all but disappeared. No legal observer said that Saturday’s decision was arcane, vague or indecisive.

Two conservative legal scholars said the high court majority was probably irked by the way Friday’s ruling by the Florida Supreme Court appeared to skirt the boundaries the U.S. Supreme Court had laid down only a few days earlier.

“They must find it almost an act of defiance,” said McConnell. The justices “can’t be fooled by the way the decision is couched.”

The Florida court majority took pains to say its decision was grounded entirely in Florida law as it existed prior to election day. But McConnell said the Florida justices had stretched the law by calling for new hand recounts during the contest phase of the case.

By creating new rules, the Florida court delivered “a mortal blow” to the rule of law, said Pepperdine University law professor Douglas Kmiec, an advisor to the Bush legal team.

“The influential political philosopher John Locke long ago observed that no person would surrender his life or liberty if laws were not generally applied and known in advance. There is nothing knowable in advance about Florida election law, except that it resides in the creative minds of four justices of the Florida Supreme Court,” Kmiec said.

By ruling for Bush and issuing the emergency stay, the Supreme Court disagreed with a prior ruling by a federal trial judge in Miami and three separate decisions by the conservative U.S. 11th Circuit Court of Appeals in Atlanta, the last of which came less than an hour before the Supreme Court.

Circuit Court Finds No ‘Irreparable Harm’

The 11th Circuit found that permitting the recounts created no “irreparable harm.” However, in an attempt to prevent anything decisive from happening, the appeals court also ruled that no results from the recount could be certified until the Supreme Court had considered the case.

Nonetheless, Kmiec said that if the Supreme Court had not acted, the harm to Bush would have been legal as well as political because the previous certification given to Bush would have been denied conclusive effect under the Electoral Count Act of 1887 if the recount and subsequent challenges continued past Tuesday.

Other legal scholars said that the Supreme Court had turned the notion of “irreparable harm” on its head.

“If the recount had continued, and then the Supreme Court ruled them illegal, George Bush would still be the certified winner in Florida,” Chemerinsky said. But since the justices now have halted the recount and probably made it impossible for Gore to overcome Bush’s lead by Tuesday, the Supreme Court “irreparably harmed” the vice president, he said.

From the start of the postelection battle, Bush’s lawyers have seen the U.S. Supreme Court as their insurance policy. They were confident the conservative justices would not allow the liberal Florida state judges to tip the election to Gore.

Overturning the Florida court’s rulings, however, have required the high court’s conservative majority to ignore for now its usual posture of upholding states’ rights against federal meddling.

The justices also need to find a federal issue in the state election dispute. On Sunday, the lawyers on both sides are supposed to file 50-page briefs outlining their positions.

Searching for Federal Violation

So far, in their emergency appeal filed Friday night, Bush’s lawyers have struggled to say just how the Florida court ruling violated federal law. At one point, they argued that the Florida Supreme Court did not have the power to review the ruling by Leon County Circuit Judge N. Sanders Sauls that had rejected Gore’s contest of the election results.

Bush’s lawyers asserted that because Florida election law says contests are to be filed in circuit courts, only circuit judges--and not the state Supreme Court--have legal authority over such disputes.

More broadly, they also argued that the “chaotic and standardless manual recounts” ordered by the Florida court would violate the Constitution’s guarantees of equal protection and due process of law.

In their response, Gore’s lawyers said the Florida justices simply applied Florida law to a Florida election dispute. They said Bush’s legal team was making “a remarkable claim: for the ostensible purpose of advancing the interest of voters, [Gov. Bush] urgently requests this Court to stop the counting of votes.”

About three hours after Gore’s response arrived, the Supreme Court majority handed down its order stopping the vote count.

*

Savage reported from Washington and Weinstein from Los Angeles.