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Friday, Dec. 15, 2000

One of the many "if only" questions of this historic, now-resolved election is this: If only the Florida Supreme Court had handled the situation differently, might the U.S. Supreme Court's opinion have come out differently, allowing a recount to proceed and possibly resulting in a Gore presidency?

Judicial decision-making is emotional as well as rational. Accordingly, it is important to consider that the Florida court's actions may have upset and annoyed the Supreme Court's Justices — who were working within a short time frame and under tremendous stress.

Failure to Heed the Supreme Court's Earlier Command

A dog did not bark in Florida, and the sound of that silence was very loud.

Recall that the Florida Supreme Court's first ruling extended the manual recount deadline past the deadline set by the Secretary of State. Recall, too, that the U.S. Supreme Court vacated the Florida court's opinion extending the deadline, but also sent it back — in legal terms, "remanded" it — to Florida court for clarification.

The problem is, clarification came much too late. For days, the Florida court remained silent, and did not clarify its first ruling, ignoring the U.S. Supreme Court's remand order. Instead, the Florida court held argument on, and resolved, a second Gore v. Bush case — by ordering an additional, statewide manual recount of undervotes.

The second case was then appealed to the U.S. Supreme Court. And only when that second case was well under consideration did the Florida court turn back to its initial opinion, in the first case, and issue the clarification of that first opinion that the U.S. Supreme Court had demanded.

Talk about putting the cart before the horse. Plainly, the first case should have been resolved first; the second case, second. But this simple principle was ignored by the Florida court — and at the same time, the U.S. Supreme Court's wishes were ignored, too.

Because the Florida court failed to act promptly on the remand, at the U.S. Supreme Court's oral argument in the second Gore v. Bush case — and also during part of the crucial, initial time when the U.S. Supreme Court was deciding, and beginning to draft its opinion resolving that case — the Florida court's opinion on the first Gore v. Bush case was still missing.

Did this course of events matter technically and legally? Probably not. The way the Florida Justices would clarify their initial opinion was obvious to everyone, and they issued their clarification, which fulfilled everyone's expectations, before the U.S. Supreme Court's decision was issued. In remanding, the U.S. Supreme Court, in effect, had warned the Florida court to avoid both a constitutional pitfall and a statutory pitfall, and the Florida court complied when it finally issued its clarification— reinstating its original decision, but with less risky reasoning behind it.

Legally, then, the Florida court's lateness was not significant. But might this course of events have mattered to the Justices emotionally? Might it have been felt by them as an insult? Absolutely.

The Florida court's ignoring the remand was a slap to the U.S. Supreme Court — and it was certainly construed by at least some of the Justices as such.

The Bush attorneys knew it was a slap, and so they led off their brief to the U.S. Supreme Court in the second Gore v. Bush case with a strong reminder, in italics, that the Florida court had not even bothered to act on the U.S. Supreme Court's remand. These italics, and the point they raised, were not lost on Justice O'Connor — who at oral argument said explicitly that she was troubled by the Florida court's failure timely to act on the remand.

Nor was this point lost on Justice Scalia — who queried Gore attorney David Boies with a clever (but somewhat sophistic) line of questioning about the effect of the Florida Court's failure to reinstate and clarify its initial, vacated opinion. Scalia tried to get Boies to admit that the Florida court's second opinion was built on sand — because, at least when oral argument was going on, the Florida court's first opinion was a nullity.

Unsurprisingly, Boies, an absolutely superb advocate, did not take the bait. And Scalia's line of questioning, in the end, was moot, since the Florida court finally did clarify its opinion — albeit over the objection of its Chief Judge, and in medias res. But the questioning sidetracked Boies, detracting from time in which he might have made other points in Gore's favor — point that might have helped win over Justices Kennedy or O'Connor, the "swing votes" on the Court.

A Mistake that Destroyed Trust, Suggesting a Rogue Court

Even more importantly — for few cases, in the end, are decided based on oral argument — in the Justices' minds, the Florida court's omission to follow U.S. Supreme Court instructions to clarify, may have indirectly bolstered the argument in favor of reversal.

If the Florida court could not even promptly follow instructions of the highest court in the land on remand in the first case, some of the Justices might have wondered, how could it be expected to oversee a fair and expeditious recount if another remand were granted in the second case?

Finally, if the Florida court did disobey, and yet was able to conclude the recount, and Gore won based on unauthorized procedures, how much effect would yet a third U.S. Supreme Court decision, attempting to shift the election victory to Bush on the ground that the Florida recount was illegal, be expected to have?

In short, the Florida court made a serious mistake in failing to promptly clarify its initial opinion as the U.S. Supreme Court asked. Its failure rendered Bush arguments, that the Florida court was a rogue institution acting outside the Constitution's system, much more plausible than they otherwise would have been. (Justice Souter, at oral argument, still seemed quite skeptical of the "rogue court" argument — but unfortunately, five other justices seem to have accepted it).

Put another way, the Florida court's departure from traditional judicial practice, in which remand orders are scrupulously obeyed, unfortunately mirrored the very arguments with which Bush attorneys sought, and won, reversal — and the Presidency. The parallel is this one: The Justices might have wondered why a court that did not seem to respect a higher court's commands would faithfully honor the wishes of the state legislature in interpreting its laws, and its intent.

In summary, the U.S. Supreme Court's initial, deferential remand was a gift of sorts to the Florida Supreme Court — a gift that allowed the Florida court a second chance at supporting its opinion, and even flagged for the Florida court potential areas of concern, some of which had not been briefed by the parties.

But it was a gift the Florida Supreme Court insultingly failed to even open. No wonder the giver did not follow up with a second present, and turned a cold shoulder instead.

Julie Hilden, currently a freelance writer in New York, is a graduate of Yale Law School. She practiced law at Williams & Connolly from 1996-99. Previously, she served as a clerk to federal judges on the appellate and trial levels, assisting then-Chief Judge Stephen G. Breyer of the United States Court of Appeals for the First Circuit, and Judge Kimba M. Wood of the United States District Court for the Southern District of New York.

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