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Supreme Court at work, looking for unanimity

©Associated Press

© St. Petersburg Times, published December 3, 2000


WASHINGTON -- In a rare Saturday at work, the Supreme Court justices labored behind closed doors and pondered a Florida ruling that resulted in Al Gore getting more votes in his bid to overtake George W. Bush.

All nine justices were at the court a day after hearing arguments in a historic case that will help decide whether Gore or Bush wins the White House.

The court gave no indication when it might rule, although it has acted as quickly as one day on urgent matters such as the Rosenberg atomic spy case.

As always on Saturdays, the Supreme Court building was closed to the public, but the snack bar staff was called in to serve those who were working.

One major issue was whether the seemingly divided court could find the unanimity it often seeks in such momentous cases.

"In cases like this, the chief justice would like to have a unanimous court, but I don't think the court is unanimous," Daniel Polsby, a George Mason University law professor, said Saturday.

The court ruled unanimously in cases such as the 1954 Brown vs. Board of Education decision that outlawed racial segregation in public schools; the 1974 case that forced President Nixon to give up the White House tapes; and the 1997 decision that let Paula Jones sue President Clinton for sexual harassment while he was in office.

"Earl Warren's theory was that a unanimous Supreme Court speaks with unparalleled moral authority," Polsby said of the late chief justice who wrote the Brown decision.

University of Southern California law professor Erwin Chemerinsky added, "The court is acutely aware of its historical role here. . . . The court rightly will struggle to see if there's some ground that will produce unanimity."

The justices showed sharp divisions during Friday's argument, with some -- most notably Chief Justice William Rehnquist and Justice Antonin Scalia -- seeming to believe the Florida Supreme Court exceeded its authority when it extended the deadline for certifying the hand-counted ballots that cut Bush's lead from 930 votes to 537.

Justice Ruth Bader Ginsburg spoke strongly in favor of deferring to the Florida court's interpretation of state law, while Justice Stephen G. Breyer questioned whether the case made any difference since Bush was certified the Florida winner even with the recounted votes.

Many observers speculated the court could fall into the same 5-4 lineup with which it has decided many contentious cases. In those cases, Rehnquist and Scalia joined with Justices Sandra Day O'Connor, Anthony Kennedy and Clarence Thomas, while the four dissenters were Justices John Paul Stevens, David Souter, Ginsburg and Breyer.

Chemerinsky said he thought the court would try to avoid such a split. "They don't want to be dismissed as just partisan," he said.

Victor G. Rosenblum, a Northwestern University law professor, said a divided ruling "does nothing to put things to rest in a way that all Americans support."

Pepperdine University law professor Douglas Kmiec said that in Brown, Warren lobbied hard and wrote a narrow decision to get a unanimous court, while the unanimity in the Paula Jones decision seemed to come more easily.

"Here it's a little tougher," he said.

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