ALL PARTISANS ALL THE TIME: The Florida Supreme Court And Its Critics

The problem with judicial opinions is this: you gotta read ‘em to know what they say. And the problem with actually reading them is this: they’re a lot duller than their press.

The reaction to the court’s ruling has been nothing less than astonishing. There’s a presidency at stake, so perhaps the reaction of the governor’s campaign and its political supporters is understandable. The reaction of others is not. It is nearly impossible to find a pro-Bush politician, elder statesman, commentator, columnist, newspaper, radio talk-show host, or dog-catcher who will not declare that the ruling was a partisan decision rendered by Democratic appointees prepared to ignore the law to help the vice-president.

Precisely because there is so much at stake in the effects of the court’s opinion, it is easy to miss the fact that there is much at stake in talking about it, too. In the United States, courts are not supposed to be partisan. Those who insist, correctly, that a judge is not to treat a court case politically must recognize a corresponding obligation not to treat that judge’s ruling as political, at least not lightly. Both partisan judicial opinions and irresponsible accusations of partisanship aimed at judges are dangerous, because both serve to delegitimize the courts. Unfortunately, some of the reaction to the Florida Supreme Court’s opinion fits this description.

To begin with, the party affiliation of a judge is not a useful way to begin talking about that judge’s opinions. The political party of a judge, or the executive who appointed her, has proven a fickle compass for mapping a judge’s behavior. There is research showing that a judge’s political party is a strong predictor of the judge’s votes. But there is also some truly spectacular evidence to the contrary.

The most famous example is Earl Warren — Republican governor of California, overseer of Japanese internment during World War II, and Eisenhower appointee to the Supreme Court. Warren, of course, led the most liberal court of the century. Eisenhower called his appointment "the biggest damn fool mistake I ever made." Countless presidents and governors have been similarly disappointed.

Turning to the opinion Florida’s judges actually wrote, the most important though counterintuitive point is that, in determining whether the opinion is the result of partisanship, its effect doesn’t matter at all. The court’s decision was going to affect an election, no matter what. So the fact that it did is evidence of nothing. What matters is how the court got to its result.

The essential problem before the Florida Supreme Court was this. A portion of the election law, enacted in 1951, says that the state "shall" ignore election results not reported by the counties within seven days after the election — no exceptions. That portion of the law does not provide for amending or supplementing those results in any way, and the state is bound to consider only those results in determining who won. After that, the only process available to an unhappy candidate is to protest or contest the election.

There is one more relevant part of the statute. A candidate "may" request a manual recount any time during the seven days after the election, and a county canvassing board "may" honor the request. If it does so, then the canvassing board’s discretion disappears: it must conduct a limited recount, and if that reveals errors that could affect the election, it must do a full recount (assuming the problem is not a computer glitch, a possibility specifically contemplated in the law).

If you read just the 1951 provision, you would naturally conclude that the state cannot, as a matter of law, count late-filed county returns towards Florida’s vote totals. In contrast, anyone reading just the 1989 provision would naturally conclude that the state has the power to decide whether to count late-filed returns.

This is a genuine, undeniable legal conflict — not the namby-pamby kind a truly political judge might invent in order to rule as he would like. Does the state have discretion, or doesn’t it? No matter what the court says, one provision or the other has to be limited, or modified, or ignored.

When statutes contain internal conflicts such as these, judges of all stripes usually resort to the so-called "canons of interpretation" — a set of rules, crafted over time, by which judges read statutes — for resolving the conflict. That is, in fact, what America’s foremost conservative jurist, U.S. Supreme Court Justice Antonin Scalia, recommends. In his excellent 1998 essay, A Matter of Interpretation, Justice Scalia argues that the canons are the right tools for figuring out what the law is when the law is unclear.

That is precisely what the Florida Supreme Court did.

Perhaps the most important part of the Court’s approach was to interpret the whole election law, not just the provisions directly at issue. After all, the 1951 provision ("shall" ignore recounts) and the 1989 provision ("may" ignore recounts), are not the only ones; there is also the third provision setting out the rules for recounts.

A recount can legally be requested, and the request legally granted, an hour before the seven-day deadline. Again, at that point the procedures — a limited recount, followed by a full one — become mandatory. Yet a county canvassing board faithfully following the recount laws as the result of an eleventh-hour recount request could find itself knee-deep in chads when the deadline in the 1951 provision ticks away.

And there’s more. The recount provisions provide for personal fines to be paid by the canvassing board members for late submissions. If late submissions had to be ignored, why on earth would the board bother to risk the fines for late submissions?

In addition to making sure that its interpretation of one provision did not cancel out several others, the court invoked several other canons of construction with unimpeachable Florida pedigrees. It noted, to take only one example, that when harmonizing conflicts, later-passed provisions are given precedence — so the 1989 provision should trump the 1951 provision, and the proper rule is that the Secretary "may" ignore recounts, not that she must.

The point of this short tour of the Florida Supreme Court’s decision is not that the court reached the only possible fair result. A different court could have come out differently. The point, rather, is that the court’s decision is unobjectionable by all the usual standards.

Indeed, if the situation were completely reversed, Governors Bush’s lawyers could have made — without embarrassment — the same arguments, using the same tools, as Vice-President Gore did. Because of the circumstances, the court’s decision affects an election. But that does not make it a partisan decision. In the end, the accusations of partisanship say far more about the accusers than about the court.

There is a larger point, too, that goes beyond the debased dialogue about our courts. It is this. It should be possible for commentators and columnists — and even the parties’ elder statesmen — to be more nuanced and fair than the politicians themselves. It should be possible to say out loud that, for example, the Florida Supreme Court’s opinion was reasonable, but that the Gore campaign’s position on counting "dimpled" ballots is not. It should be possible to agree with our opponents when we think they are right. This November’s wind has been especially chilly. It should be possible to conduct at least some of our public debate in the temperate zones.