The Road from Tallahassee

The morning after the tumultuous 2000 presidential election, President Clinton remarked that the American people had spoken loud and clear - or at least the citizens of 49 states and the District of Columbia had. The trick, he suggested, was now to figure out what exactly the citizens of the one remaining state - Florida - had said.

A month after the tumultuous Supreme Court decision in Bush v. Gore, all agree that the Court also spoke loudly; not only did the decision effectively end the hotly contested battle for Florida's 25 electoral votes, but the sound recordings of the oral argument (which the Court, for the first time ever, released the same day) revealed the justices boisterously challenging both sides and peppering their questions from the bench with phrases like 'for goodness sakes.'

But like the election in Florida itself, Bush v. Gore still has people trying to figure out what was ultimately said: The Court hastily produced six opinions spanning more than 60 pages and dealing with complex and seldom-litigated questions of federal constitutional and statutory law. Unlike the presidential election, however, which had to be decided one way or another, the opinions in Bush v. Gore now have many asking a more fundamental question: Should the Court have decided the matter at all?

THE ROAD FROM TALLAHASSEE TO WASHINGTON
One thing that all can agree on, is that the decision in Bush v. Gore was uncharacteristically quick. The Court often has to make important decisions on an abbreviated timetable - requests to stay impending executions are the most obvious example - but rarely does it move from briefing to argument to decision in less than a single week. Here the Court did just that - and did it twice. The first case, Bush v. Palm Beach County Canvassing Board (Bush I) arrived the day after the Florida Supreme Court ordered that the state's statutory deadline for conducting hand recounts be extended. Although at oral argument the justices appeared to be deeply divided about the underlying legal issues - most notably, whether the Florida court had changed that state's rules for conducting recounts midstream - the Court managed to craft an opinion that all nine justices were able to join. In its Bush I opinion, the Court indicated that it potentially had some serious federal concerns with the way the Florida court handled the case. But, the Court said, it couldn't tell whether the Florida court had considered the constitutional and statutory issues that might arise if it had created new law. Having fired this shot across the Florida court's bow, the U.S. Supreme Court took the modest step of sending the case back to let the state court explain itself. To some, Bush I appeared to be an act of judicial statesmanship; to others, it unnecessarily consumed limited time for pushing ahead with a hand recount. By all accounts, the decision merely identified potential federal interests, and cautioned the state courts to show some deference to those interests.

During the week that the Court was considering Bush I, however, events had continued to move forward, changing both the factual and legal landscape back in the Florida courts. Most significantly, the Florida secretary of state had certified the initial recount for George Bush without further extending the time for some counties to finish their hand recounts; the Gore forces had mobilized a 'contest proceeding,' seeking to have the courts order the further hand counting of what were believed to be additional uncounted votes in several Florida counties; and the Gore contest case moved at lightning speed back to the state supreme court in Tallahassee. The Florida Supreme Court heard the contest appeal on a Thursday morning (just three days after the U.S. Supreme Court remanded Bush I) and issued its own opinion - in what now had become Bush II - by the end of the day Friday.

By late Friday night, talking heads were bobbing on every channel about the chances of another round of U.S. Supreme Court review; no one expected the Court to act as quickly and boldly as it did. Gore's attorneys were already back in the local circuit courtroom arguing about the timetable and standards for a hand recount, when the attorneys for Bush filed their emergency petition to the Court for a stay.

The hand recount on Saturday morning had barely begun when word came that the justices had decided to hear Bush II and had set argument for the following Monday. Even more significant, the Court, by a 5-4 majority, said the hand-counting in Florida had to stop immediately. The four dissenters, led by Justice Stevens, charged the Court had overstepped its bounds by staying the hand counts. Believing a 'brief response' to Stevens' opinion was in order, Justice Scalia wrote a short opinion suggesting both that Bush had a 'substantial probability of success' on the merits, and that it was appropriate for the Court to stop the hand counting before finally resolving Bush's claims so as to avoid a possible 'cloud' over 'the legitimacy of his election.'

Scalia turned out to be right - at least with respect to his first point. The Court released the Bush II decision near midnight on Tuesday evening, leaving the parties, reporters and election officials to spend the last hours before the recount period was set to end, trying to interpret the Court's decision. By the same 5-4 breakdown that produced the stay, the Court ruled for Bush on the merits and effectively ended the post-election controversy in Florida. The majority's brief per curiam opinion said that a hand recount judged only by Florida's 'clear intent of the voter' standard would be essentially standardless. Whether the lack of standards might be a problem in all election contexts, it was at least a problem in the context of a court-ordered statewide recount, and therefore the Florida court was reversed. The Court did not say that Gore had been wrong in seeking to contest the vote, but rather that in view of Florida's preference to have its electoral votes certified by December 12 (the day the Supreme Court decided Bush II) Gore had simply run out of time.

It is open to question, however, whether Scalia was right on his second point, namely that a stay was necessary to preserve the integrity of Bush's eventual election. The Court's ultimate decision immediately quelled the Florida tumult - Al Gore conceded the election within 24 hours - but left quite a few people fuming not just about the Court's ultimate decision but particularly about its decision to stop the hand counts that had started Saturday morning. Four of those people happened to be members of the Court. Justices Stevens, Souter, Ginsburg and Breyer each wrote heated dissents, charging the majority was wrong both to take the case and to grant the stay. The majority, they claimed, had effectively picked the winner because it decided who would be sitting down when they voted to stop the music.

A far greater number of bruised feelings remain outside the building. When the Congress convened ceremonially in early January to certify the electoral vote, U.S. Rep. Rangel of New York charged that Bush was the first U.S. president 'appointed by the Supreme Court.' And many of the Gore faithful already have vowed to focus their efforts on any Supreme Court nominations the new President Bush might have the chance to make.

SHOULD THE COURT HAVE STEPPED IN?
In some respects, it is easy to see the Florida Supreme Court's handling of Bush II as practically inviting a swift reaction from at least certain members of the U.S. Supreme Court simply by virtue of how its decision came down. The Florida court announced its Bush II opinion before writing anything in response to the Supreme Court's request for clarification of Bush I earlier in the week. The ad hoc nature of the remedy in Bush II - letting each canvassing board decide standards for the hand recounting of undervotes - seemed only to confirm what the U.S. Supreme Court had criticized earlier in the week. Whereas the first time around the Florida court had simply settled on its own date for concluding the initial recount, in its second opinion the court ordered a remedy (a statewide recount of undervotes) that neither side had even requested. The Bush forces quickly charged the Florida court was back in the business of making up the law as it went along - and thumbing its nose at a unanimous U.S. Supreme Court in the process. The fact that the Florida court divided 4-3 in Bush II, whereas it had been unanimous in Bush I, was said to be proof that four 'partisan' state justices were determined to use any means necessary to deliver the White House to Al Gore.

But its is hard to say that some perceived 'impudence' by the Florida Supreme Court in fact invited review. The Florida court did, in fact, respond to the Bush I remand order just a week after the U.S. Supreme Court sent the case back and the first business day after it issued the opinion on the contest appeal in Bush II. The Florida justices arguably had reason to believe that the press of time made it more important to get their opinion on the contest appeal out first, so the recounting of votes could commence and be completed in time for the Florida's votes to be counted at the meeting of the Electoral College. And although the Florida Supreme Court decided Bush II by a single vote, so did the U.S. Supreme Court; the former can't be any more illegitimate than the latter if we use the margin of decision as the metric. What's more, two of the three dissenting Florida justices thought the majority was basically right on the law but simply believed (as they paraphrased Vince Lombardi) Florida had run out of time for conducting recounts.

Whether the U.S. Supreme Court should have gotten involved in the Florida election cases is a question upon which no one expects quick agreement. Wholly apart from political considerations, a good case can be made that the Court was not institutionally well positioned to hear the cases. Bush II required the justices to make decisions quickly on unsettled legal issues, which is not the Court's usual practice or its strong suit. None of us (except possibly Mozart) does our best work in a first draft. But justices in particular rely on time, and development of ideas through lower courts, before making decisions, because their opinions set precedent for all other courts in the country and are expected to be timeless.

Not only were the justices required to deviate from the norm and decide things quickly, they also had to do so without the benefit of much precedent. The principal bases for the Bush appeal to the U.S. Supreme Court were two very obscure legal provisions: Article II, Section 5 of the Constitution, which gives primary control over the selection of presidential electors to the state legislatures, and Title 3, Section 5 of the U.S. Code, which immunizes from collateral challenge slates of electors appointed in conformity with state law as it existed prior to election day. The constitutional provision had last been touched on by the Court in an 1892 decision; the statutory provision arose out of the disputed Hayes-Tilden election of 1876, and had never been construed by any court. In the normal case, the absence of precedent or split authority from other courts that have grappled with tough legal questions would again counsel against Supreme Court review.

More important, the Court's decision to hear the cases appeared contrary to the majority's general insistence that the Court avoid injecting itself into political disputes. The Court often cannot avoid deciding red hot issues of national controversy, but it is rare for the Court to get involved when the public is looking to it to utter 'the last word' in short order on a political matter where review is not required. The late scholar Alex Bickel once waxed eloquently about the 'passive virtues' of the Supreme Court avoiding entanglement in just this sort of case. And here the Court had an easy road to passivity: simply exercising its discretion not to take the cases but to leave the controversy instead to the Florida courts, in the first instance, and ultimately to the national political process. It can be argued that by taking on the Bush cases, the Court unnecessarily fostered public perception that the Court was willing to put aside principles of restraint in its zeal to resolve the election dispute.

At the same time, it can be argued that it was appropriate for the Court to get involved precisely because the consequences were so momentous. The Court's own published criteria for granting certiorari from state court judgments counsel states that it should review decisions that raise 'an important question of federal law that has not been, but should be, settled by' the U.S. Supreme Court. A decision that potentially affects who will be elected president of the United States arguably qualifies as 'important.' Under this same view, once the election dispute had been placed into the legal arena, and federal law claims were asserted, the U.S. Supreme Court was bound to play a role in resolving it. Indeed, the Bush II per curiam opinion described the Court's role as exercising the 'unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.'

THE JUDGMENT OF HISTORY
The post-post-election political consensus of the Supreme Court's work in the Bush cases seems to be that a majority of the Court was willing to risk some claims of political partisanship and other short-term damage to its institutional reputation in order to bring finality to the presidential drama. One analysis would be that the Court merely followed Justice Jackson's observation that 'sometimes it is more important that a matter be decided, than that it be decided correctly.' Under this analysis, a majority was concerned that allowing Florida processes to play themselves out under the standardless Florida laws in place would not improve the situation in Florida, but would only inject more uncertainty into the actual result. Another, less charitable analysis, was that a majority of the court favored George W. Bush and took the opportunity to prevent Al Gore from obtaining the time necessary to obtain a complete recount. Whether one subscribes to the former view or the latter probably has a lot to do with which candidate one supported for president in the first place.

History likely will yield a more refined judgment of the Court's handling of the Bush cases, based on facts that unfold over time. The immediate consequence of the Court's action - whether it actually 'picked the winner' in the election - may depend upon whether news organizations' promised review of the disputed Florida ballots shows that a recount by the Florida court's standards would have resulted in a Gore victory. The longer term significance of the Court's decision may turn on whether history itself views George W. Bush's presidency favorably, or whether Al Gore makes a comeback to one day be elected president.

In the annals of Supreme Court history, the Bush decisions will be part of a larger collection of cases in which the Court stepped into the political breach of impending constitutional crises. Famous examples from this century include the Steel Seizure Cases, in which the Court halted President Truman's attempt to take over the private means of production for what he believed was the national good, and United States v. Nixon, in which the Court effectively ended the Watergate crisis. In each of those cases, as in Bush v. Gore, the resiliency of the American system was reinforced by the political branches' willingness to accept the Court's decision as final even while they disagreed with it. Whether history ultimately judges the justices' actions to be sound is a chapter that has yet to be written. +

ABOUT THE AUTHORS

Bleich and Klaus are litigation partners at Munger, Tolles & Olson in San Francisco. Bleich clerked for Chief Justice Rehnquist in 1990 and teaches constitutional law at Boalt Hall. Klaus clerked for Justice Kennedy in 1995 and teaches a course on advocacy and judicial decision-making at Stanford Law School.

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