READING THE FLORIDA SUPREME COURT'S OPINION: THE USUAL, THE UNUSUAL, AND THE EXTRAORDINARY

As the nation now knows, on Friday the Florida Supreme Court issued a 4-3 decision mandating further recounts of "undervotes" (ballots on which the voting machine did not discern a choice of presidential candidate). Moreover, the court indicated that these recounts should occur not only in those counties whose tallies had been hotly contested and were directly before the court, but also statewide.

The Florida court's decision is to be the subject of argument before the U.S. Supreme Court, scheduled to take place today — and no wonder. From a lawyer's perspective, the Florida Supreme Court's decision is extraordinary in a number of respects.

To say that the decision is extraordinary is not to say that it is wrong, for the times, too, are extraordinary. But it is worthwhile to examine the decision against the backdrop of more typical judicial decisionmaking, to see just how unusual it is.

The Florida Supreme Court held that the trial court misinterpreted the relevant law in two important respects. First, it held that the trial court should not have applied an "abuse of discretion" standard when reviewing county canvassing board decisions. Instead, it held, the trial court should have accorded no special deference at all to those decisions.

Second, it held that the trial court should not have diverged from the statutory standard as to whether a number of legal votes had been rejected "sufficient to change or place in doubt" the election's results. According to the Supreme Court, the trial court did not pay enough attention to the relatively low standard of merely "plac[ing] in doubt" the election's results, and as a result imposed too high a burden on Gore and his attorneys.

In my opinion, both of these legal rulings constitute business as usual. Put another way, while reasonable minds might disagree as to whether the rulings are correct, I think most attorneys would agree that they are, at a minimum, the product of the type of judicial interpretation that goes on in appellate courts every day.

The remedies that accompanied these rulings, however, are extremely unusual for an appellate court to issue. The usual remedy for a trial court's application of the wrong standard is commonsensical: the case is sent back to that court so that the correct standard can be applied. Here, however, the Florida Supreme Court did not send the case back to the trial judge, Judge Sauls, probably due to time constraints.

The Florida Supreme Court did, however, send the case back to the lower, Circuit court so that a remedy could be fashioned. But it did so with strong and unmistakable instructions requiring the Circuit court to conduct hand-tabulations of non-manually-counted undervotes in Miami-Dade County, and "enter any orders necessary" to include in the voting tally the results of that hand tabulation (as well as certain votes for Gore from Palm Beach County and the partial Miami-Dade hand recount). From these rigid instructions, one gets the sense that the Florida Supreme Court would have tabulated the votes itself, had it not been unseemly.

The Florida Supreme Court also instructed the Circuit Court to consider statewide relief that would affect many counties that were not even involved as parties in the lawsuit before the court. That is another very unusual step, for judicial relief is generally restricted to the parties before the court and to the narrow relief requested. Moreover, the typical practice, if relief is to affect non-parties, is to allow those non-parties (here, the other counties) a chance to be heard. Again, however, the court implied that there simply wasn't time to follow normal procedures.

The Florida Supreme Court's decision is also remarkable when judged against standards of what courts typically do in cases that might cause conflict among different branches of government. In such cases, courts typically try to reach a unanimous decision and avoid conflict with other branches of government and other courts. The Florida Supreme Court did neither.

The Florida court might have decided to defer to the state legislature — which clearly believes Bush has won the election, and intends to slate electors accordingly — or to defer to the state executive branch official who earlier certified the vote for Bush, simply to avoid interbranch conflict. Alternatively, the court might have exhibited such deference in order to heed the warning, in the U.S. Supreme Court's earlier opinion in Palm Beach County v. Harris, that it should not infringe upon the state legislature's plenary power over electors' appointments.

The U.S. Supreme Court's deference, in that decision, was twofold: Not only did the Court decline to interfere in a contest over the top position in the federal Executive Branch. It also honored constitutional federalism by seeking clarification from the Florida Supreme Court as to its earlier decision, rather than reversing that court's decision outright.

The U.S. Supreme Court's approach, while widely lauded, was also, in a sense, unremarkable. Though it periodically faces criticism for being too activist, in reality the U.S. Supreme Court has often exercised what legal scholar Alexander Bickel termed the "passive virtues." Honoring the "passive virtues" means that the Court avoids controversy whenever possible — often by means of procedural and jurisdictional rulings.

In contrast, if the Florida Supreme Court's decision of Friday had virtues, they certainly weren't passive ones. That decision, unlike the U.S. Supreme Court's, was not deferential — and it certainly was not unanimous.

Not only did the Florida court's decision split the court down the middle, 4-3, it also inspired two dissents that were accompanied by written opinions. (Judges always have the option of simply registering their dissent, without giving reasons).

Strikingly, one of the dissents to the Florida Supreme Court's decision was authored by the Chief Judge — who had taken the lead in questioning at oral argument, and who likely had tried and failed to take the lead in achieving unanimity (or at least a majority) on the court. The dissent, in addition, was strongly worded.

Chief Judge Wells' dissent began with a sop to his colleagues, stating that he did not "question their good faith or honorable intentions" — but what followed made this brief compliment sound as ironic as Marc Antony's speech, in Julius Caesar, calling Brutus "an honorable man" while implicitly damning him.

Wells described his colleagues' opinion as lacking "self-discipline," having "no foundation in law," and said he "could not more strongly disagree" with it; then he accused the Court of risking a "constitutional crisis" that would damage "our country, our state, and . . . this Court as an institution." (But Judge, tell us what you really think.)

The dissent and the 4-3 divide of Florida Justices, in short, made the Florida court's deep division starkly apparent to any observer. Again, the 9-0 united front of the U.S. Supreme Court's recent Palm Beach County decision provides a sharp contrast, as well as an example of a more traditional approach.

The Florida Supreme Court's majority opinion was also blatantly activist, reaching out to do justice based on broad, liberal interpretation of the laws. That isn't necessary bad. Along with "passive virtues," there are also active ones. But it is unusual.

The decision posed a classic conflict between law and justice. In dissent, Chief Judge Wells accused the majority of acting merely because it "perceives it is ‘the right thing to do'" — not because the law requires it. But acting because one "perceives it is the right thing to do" sounds like the very definition of moral action. And despite the Chief Judge's complaint, the question remains: What if, indeed, the majority's decision was the right thing to do? Shouldn't the court then do it? Cannot our judges act morally?

Certainly, if one believes in popular sovereignty, it is hard to reject wholesale the deep and important principles elucidated in the Florida Supreme Court's majority opinion. These include the principle that clearly indicating one's intent should be enough to ensure that one's vote is counted, and the principle that remedying the "concern that not every citizen's vote was counted" goes to "the essence of the structure of our democratic society."

Florida Supreme Court Justice Pariente powerfully articulated the latter principle at oral argument, when she asked Bush attorney Barry Richard if it was indeed his position that the court could not review votes "properly cast and never counted." Richard understandably equivocated — for the plaintive vision of piles of votes spit out by machines, waiting for a human being's eye to interpret a human being's mark, cannot help but move us.

In some sense, then, one must admit that the Florida court, in its activism, has spoken the truth — or at least, a sort of idealistic truth about how our society would be if it lived up to its dreams of itself. The question that remains, though, is whether it was for this court, in this opinion, to speak that truth, or whether silence would have been a virtue here — albeit a passive one.

We will soon hear from the U.S. Supreme Court whether the Florida court should have confined itself to a more passive role, or was correct to reach out and take these extraordinary measures.