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In deciding winner, justices lost

In many ways, Tuesday's ruling was unusual to the point of being baffling, even jarring.


© St. Petersburg Times, published December 14, 2000

WASHINGTON -- The Supreme Court justices who drove off into the night Tuesday left behind more than a split decision that ended a disputed presidential election.

They also left behind an institution many lawyers and others who follow the court closely said appeared diminished, if not actually tarnished, by its extraordinary foray into presidential politics.

They point to the contradiction between the majority's action in this case and those justices' usual insistence that the court defer to state courts and refrain from interfering with the business of state government.

The members of the majority appeared at pains to rebut any suggestion that the court had intervened unduly by stopping the Florida recount on Saturday or by ruling Tuesday that it could not resume. It was "our unsought responsibility to resolve the federal and constitutional issues" in the case, the majority said in its unsigned opinion.

And Justice Clarence Thomas, a member of the 5-4 majority, told a group of high school students at the court Wednesday, "I have yet to hear any discussion, in nine years, of partisan politics" among the justices. "I plead with you that, whatever you do, don't try to apply the rules of the political world to this institution; they do not apply," he said, adding: "The last political act we engage in is confirmation."

Be that as it may, the events of the past few days were jarring even for people who pride themselves on being realists rather than romantics about how the court works.

The way the court structured and then released its opinion, just before 10 p.m., added to the sense of unease. The justices gave no hint of a reason for the unprecedented late-night release -- whether to avoid pushing Florida over the midnight "safe harbor" deadline for immunizing its electors from congressional challenge, or perhaps out of fear that the explosive and highly divisive decision might leak overnight if the court waited until morning to announce it. No matter. It resulted in an hour or more of frantic confusion that the court did nothing to prevent or alleviate.

While the sight of network correspondents fumbling in the dark on the court plaza to make sense of the decision was deeply unsettling to viewers who urgently wanted to know whether the 2000 election was now over, the fault this time was much more the court's than television's. The 65-page document omitted the usual "headnote," the official synopsis that accompanies opinions and that identifies which justices voted on which side.

Furthermore, the opinion was labeled "per curiam," meaning "by the court," a label used by courts almost exclusively for unanimous opinions so uncontroversial as to not be worth the trouble of a formal opinion-writing process. There was no indication of what the vote actually was. The names of Justices Sandra Day O'Connor and Anthony M. Kennedy, one or both of whom likely wrote it, did not appear anywhere on the document.

Unlike the Florida Supreme Court, whose spokesman, Craig Waters, became almost a cult figure for his uninflected but informative announcements of the court's opinions in the election cases, the U.S. Supreme Court does not authorize its public information staff to make public statements or give any guidance about the content of decisions.

Since the justices themselves skipped the usual oral announcement of a decision, which takes place in public session in the courtroom and includes the opinion's author summarizing its main points, there was no interpretive guide at all for the correspondents who had to dash off to their waiting cameras. The crux of the per curiam opinion, the conclusion that there was no time to conduct any further counting of the votes in Florida, came deep inside the opinion and was highlighted neither at the beginning nor at the end.

Among the most baffling aspects of the opinion was its simultaneous creation of a new equal protection right not to have ballots counted according to different standards and its disclaimer that this new constitutional principle would ever apply in another case. "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," the court said.

Joseph Goldstein, a Yale Law School professor who died this year, wrote in his book The Intelligible Constitution that the members of the court "have an obligation to maintain the Constitution, in opinions of the court and also in concurring and dissenting opinions, as something intelligible -- something We the People of the United States can understand." He wrote: "That the Constitution be intelligible and accessible to We the People of the United States is requisite to a government by consent," with interpretations that are "understandable at their core."

The justices will not meet again until Jan. 5, the date for their next scheduled conference to review new and pending cases. The passions and pain revealed in Tuesday's opinions will undoubtedly have cooled by then; these are justices who are accustomed to both bitter division -- often by the same 5-4 alignment -- and to moving on to the next case.

But there is something different about Bush vs. Gore that raises the question about whether moving on will be quite so easy. This was something more than a dispute rooted in judicial philosophy; in fact, as professor Suzanna Sherry of Vanderbilt Law School said Wednesday, had members of the majority been true to their judicial philosophy, the opinion would have come out differently.

"In the past, the 5-4 decisions have been jurisprudentially predictable," she said in an interview. "Some justices are for more federalism, some for less; some for more activism, some for less. Those are not political decisions. By and large, the opinions are consistent with consistent jurisprudential beliefs" and as such present little threat to the court's collegiality.

But in this case, Sherry said, for conservatives "the politics and jurisprudence were in conflict." The conservative justices in the majority set aside their concern for states' rights, for judicial restraint, for limitations on standing, for their usual insistence that claims raised at the Supreme Court level have been fully addressed by the lower courts. "There is really very little way to reconcile this opinion other than that they wanted Bush to win," Sherry said.

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