WHY THE SUPREME COURT CHOSE TO HEAR GEORGE W. BUSH'S CASE: A FORMER CLERK ANALYZES SOME POSSIBILITIES

By EDWARD LAZARUS

Thursday, Nov. 30, 2000

The U.S. Supreme Court recently agreed to review George W. Bush's challenge to the Florida Supreme Court decision ordering Secretary of State Katherine Harris to extend her deadline for completing hand recounts.

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In so doing, the court substantially and potentially disastrously upped the ante in the fight for the presidency. Prior to the justices' intervention, the main issue was which of the two never-say-die candidates was to enjoy four years of mandate-free gridlock.

Now, however, the justices have staked the bedrock legitimacy of the judicial branch on their ability to bring reason and closure to an increasingly desperate power struggle.

The justices don't announce why they have chosen to review a case. And they don't announce what the vote, among the nine justices, was in favor of review. (It only takes four justices' votes to grant review -- not a majority of five, as one might expect.)

Possible Reason #1: The Court Hopes to Confer Legitimacy on the New President

With Bush impugning the legitimacy of the Florida Supreme Court, a GOP mob storming Miami-Dade County election headquarters, and Al Gore preparing to protest the certified vote, the justices may have realized that the U.S. Supreme Court is the only institution capable of shrouding the next president in even a thin cloak of legitimacy. Thus, the entire court (or most of it) may have favored granting review in order to confer that precious legitimacy on the winning candidate.

If this explanation is correct, the justices may have granted review for the narrowest of Bush's hand-recount challenges (eschewing his broad constitutional claims) to limit the potential for the court's decision to do long-term mischief to the law.

Perhaps the justices further agreed to try to decide the case unanimously (one way or the other) -- and, thus, set themselves apart from partisan wrangling and place the court's full gravitas behind its potentially election-deciding ruling. (A unanimous decision helped give force to Brown v. Board of Education when the country's views on segregation were divided; unanimity was also employed in Clinton v. Jones, perhaps because the decision brought a sitting president partially under the control of the judiciary).

Finally, if we are extraordinarily lucky, the justices vowed to produce an opinion of such convincing clarity that reasonable people on the losing side will be moved to accept the court's verdict.

Although three of the participating justices had been appointed by Nixon, and although the ruling was likely to expose Nixon as a felon, the court's judgment against the president was unanimous. That ruling added luster to the court, helped rescue the Office of the Presidency, and began to heal a nation.

Possible Reason #2: Conservative Justices Seek to Ensure A Bush Presidency

But the court's decision might, alternatively, be motivated by reasons that will not unify, but may divide, the country.

Naturally, such a ruling, though definitive, would lend little additional legitimacy to Bush's claim to the presidency. Indeed, if the ruling looked too much like an exercise of pure political muscle, it might well detract from that legitimacy or at least deepen the bitterness of Democratic foes.

Even more important, such a divided ruling would degrade the Court and weaken its standing as the ultimate arbiter of our laws. The reason we vest so much authority in nine un-elected, life-tenured judges is the belief that because they are free of worries about re-election, termination, or even salary alteration, they can wield powers of reasoning and wisdom that will raise their decisions above the ugly tradeoffs of everyday partisan politics.

But if in deciding who will be the next president, they reduce their deliberations to a baldly partisan calculus of five votes beats four, they will have called their own reason for being into question.

Why Reason #2 May Be The Right One

In recent years, this court has given ample reason for pessimism. For more than a decade, the liberal and conservative justices of the Rehnquist court have been engaged in a civil war over the basic nature of our government. The conservatives have been on the winning side -- radically reworking the balance of power between the federal government and the states, obliterating court precedents, and striking down major federal legislation as they curb the power of the federal government and revitalize the once-discredited doctrine of states' rights.

Whether or not one agrees with this enterprise, the conservatives' methods must give one pause. Prevailing 5-4 in one landmark case after another, they have rewritten the Court's approach to Congress's ability to pass civil rights laws, provided states with broad immunity from lawsuits, curbed the enforcement of voting rights, sharply limited affirmative action, and streamlined the death penalty -- all on the razor-thin authority of a single vote.

And compounding the narrowness of their victories, the conservatives have engaged in troubling hypocrisies. To justify their decisions, the conservatives have invoked whatever legal doctrine is most convenient, no matter how passionately they may have assailed that very same doctrine in other contexts. Justices who claim to be textualists routinely forsake the Constitution's text; avowed originalists ignore the Framers; precedent is declared sacred in one case, then blithely tossed aside in the next.

In the field of states' rights, for example, conservative justices (such as Antonin Scalia) who ordinarily brag about their fidelity to the Constitution's text, have invoked the doctrine of "state sovereign immunity" in ruling that individuals may not sue states for damages in either federal or state court. The Constitution, however, does not include a single reference to "state sovereign immunity" and contains nary a word suggesting that states should not be subject to suit in their own courts.

Having traveled this unprincipled path, the conservative justices have placed themselves at a crossroads. The survival of their counter-revolution may well depend on whether Bush or Gore gains the power to appoint new justices to the court. But to uphold Bush's appeal from the Florida Supreme Court would require the conservatives to betray their states' rights philosophy and impose federal control over election law, despite the fact that the Constitution specifically recognizes this area of law as the special province of the states.

Edward Lazarus, a former Supreme Court clerk, is the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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