To High Court, It Is Also a Counting Game

The Supreme Court justices are experts at counting votes.

On most Friday mornings, they meet to count votes on the cases they have heard during the week.

These secret sessions are short on debate and discussion. Chief Justice William H. Rehnquist briskly goes around the table and asks each of his eight colleagues to briefly state his or her view and to cast a vote--either to uphold or reverse a lower court.

The most important rule at the Supreme Court, as the late Justice William J. Brennan used to tell his new clerks, is the “rule of five.”

“If you have five votes here,” he would say, “you can do anything.”

This morning, the scene will be different but the principle will be the same as the court takes up the most important election law case in its long history.

If the chief justice has five votes to rule for Texas Gov. George W. Bush--as most lawyers expect--he and his conservative majority can do almost anything.

They can rule quickly--but narrowly--for Bush by saying that the Florida Supreme Court erred when it extended deadlines for manual vote recounts of the presidential election in the state. Such a decision, if announced early next week, would be seen by many as a huge psychological victory for Bush and likely would increase public pressure on Vice President Al Gore to concede.

Indeed, Rehnquist could take the opportunity to write a broader opinion that all but says the Democrat should have conceded once Florida’s votes were initially tallied.

Justices Could Defer a Ruling

But if the justices rule only on certification and deadlines, Gore and his lawyers would be free to continue the legal fight in Florida--to “contest” the outcome.

There are several other options, however. The justices could defer a decision, anticipating that Gore will give up next week. Or, they could rule that the Florida election dispute is ultimately a political matter that should be resolved by elected lawmakers, not courts. The GOP-controlled Florida Legislature filed a brief asking the justices to do just that.

Regardless of which road the justices take, practical politics are likely to play a much larger role in the court’s decision than abstract legal claims.

Just a week ago, eminent law professors around the nation were freely voicing the view that the Supreme Court would not want to get involved in the messy battle in Florida. They noted that the court is cautious about taking sides in political disputes. And besides, they said, the Rehnquist court believes in federalism, the notion that states should be free to make their own decisions without second-guessing from Washington.

But the small circle of former law clerks for the justices knew better. They predicted that the conservative voices on the court--not just Rehnquist, but Justices Antonin Scalia, Clarence Thomas, Sandra Day O’Connor and Anthony M. Kennedy--would be angered and offended by the legal wrangling in Florida, in particular the state Supreme Court’s intervention to block Secretary of State Katherine Harris from certifying Bush as the winner.

Bush lawyer Theodore B. Olson submitted his petition seeking a full review by the Supreme Court less than 24 hours after Florida’s high court ruled for Gore and extended the time for hand recounts. It was late Wednesday night, the day before Thanksgiving. And Olson did not ask for an emergency order, such as when an execution is scheduled to take place in a few hours. Normally, the justices take two or three months to decide whether to review a case. This time, however, the court’s clerk told the lawyers to expect an announcement by midday Friday. The review was granted.

The high court’s evident eagerness to take up Bush’s appeal has convinced many legal experts that the justices--at least a majority of them--are determined to rule for Bush and to rebuke Florida’s high court. They also say that they will be surprised if Rehnquist does not take the lead and if Gore finds anything to like in the final decision.

“You have to assume the chief justice will be writing this [opinion], and the only question is whether he is writing for five or nine,” said Washington attorney Carter G. Phillips, who appears regularly before the high court.

The public drama will be played out this morning before a relatively small audience.

At 10 a.m. EST, the marshal will bang the gavel and announce the entrance of the justices as they step from behind a red velvet curtain. The ornate, high-ceiling courtroom has fewer than 400 seats, and the justices refused to waive their long-standing ban on television cameras--or any cameras for that matter.

In a bow to the moment, however, they will release an audio recording, and a transcript of the 90-minute argument will be available by midday.

First up at the lectern will be lawyers for the appealing side--in this case, Bush.

Olson is a former Ronald Reagan administration lawyer and strong advocate who is well regarded by the justices. He will have 35 minutes to argue why the Florida Supreme Court was wrong to block certification of Bush as the winner of Florida’s 25 electoral votes on Nov. 18. Miami lawyer Joseph P. Klock, representing Harris, will have 10 minutes to make essentially the same case.

Speeches are not welcome in the court. Typically, an attorney speaks for only a minute before he is interrupted by rapid-fire questions from the justices.

“I expect the first 15 minutes will be Ted Olson trying to explain why they need to decide this case,” said Mark Tushnet, a liberal law professor at Georgetown University.

Olson’s appeal focuses on certification of the Florida results. Because of the state court’s intervention, the certification was postponed until Nov. 26.

But Bush won then too, so what’s the difference, a justice surely will ask.

The difference is 393 votes, Olson likely will say. Bush was ahead by 930 votes on Nov. 18 and by 537 votes when Harris declared the winner Sunday. Bush’s lawyers want their client to have the larger margin as Gore’s side continues to contest the result.

If given a chance, Olson will steer the argument to his broader claim--that the Supreme Court should bring “finality” to the legal wrangling.

The two lawyers on the Democratic side also will have 45 minutes to defend the Palm Beach County canvassing board and state Atty. Gen. Bob Butterworth, who endorsed the hand recounts. Harvard University law professor Laurence H. Tribe will take the lead for Gore. At his best, Tribe has no rival as a Supreme Court advocate. He has both an encyclopedic grasp of constitutional law and a nimble mind that allows him to bat away a hard question with a clever citation from one of the court’s own opinions.

At times in the past, the justices have paid Tribe the rare compliment of sitting silently while he makes his case. But not everyone is so impressed. Rehnquist and Scalia have cut him off with snide comments, as if to suggest that the Harvard professor was more glib than convincing.

Paul Hancock will have 10 minutes to speak for Butterworth. Together, the Democratic advocates will argue that the Florida Supreme Court did nothing more than decide a dispute over state election law, an issue that should be left to state judges.

When the argument ends, the justices will leave the bench and head to their conference room in the back of the building. The justices will close the door and, alone, the nine of them will decide what to do.

“I think the ideal scenario for them would be to meet in conference after lunch, to arrive at a unanimous decision, have the chief justice draft [the opinion] over the weekend and issue the ruling Monday morning,” said Brad Berenson, a Washington lawyer and former court clerk. “But you can imagine 1,000 reasons why that might not happen.”

The first is that the justices are not likely to be unanimous. In such instances, they divide into two factions. One side works on the majority opinion and the other on a dissent. In the typical situation, the drafts of an opinion and dissent are circulated to all nine.

This process clarifies the issues, the justices say. But it also delays a decision. The general rule is that unanimous decisions come quickly and divided decisions can take a long time.

Rehnquist Uses Recording Device

Rehnquist is known for rapidly turning out opinions that are clear, decisive and brief. Thoroughly old-fashioned, the 76-year-old jurist dictates his opinions into a recording device so his secretary can type them.

During the early 1970s, when the Pentagon Papers and the Richard Nixon tape cases arrived suddenly at the high court, the chief justice was Warren E. Burger, a silver-haired conservative whose relationship with his colleagues was none too good. Typically, when Burger drafted an opinion, others would take it and recast it entirely.

In contrast, Rehnquist takes control in most big cases and rarely suffers from internal revolts. One notable exception came in 1992, when the court was moving steadily toward overturning the Roe vs. Wade ruling. To Rehnquist’s surprise, Justices O’Connor, Kennedy and David H. Souter got together secretly to write an opinion in a Pennsylvania case that preserved the abortion right. When joined with the two liberal justices, they formed a 5-4 majority to deal Rehnquist a defeat.

The Florida election case poses an especially difficult test for the high court. While some of the justices may be eager to rebuke the state courts for intervening in politics, they also know that such a ruling will be seen by many as partisan meddling.

“My instinct tells me the court will be better if it doesn’t render a decision in this case,” said Phillips, the veteran high court advocate. By the weekend, doing nothing may look appealing to some. “My guess is they are not going to race to issue a judgment.”

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Supreme Court

In the ornate courtroom that has been the

home of the U.S. Supreme Court since 1935, the nation’s

high court today will delve into Florida’s disputed presidential election. Attorneys for Republican George W. Bush will argue that the Florida Supreme Court overstepped its authority when it ordered the Florida secretary of state to accept results from hand recounts past a state-mandated deadline.

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Profiles (year of appointment, president who appointed them in parentheses)

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William H. Rehnquist (1972, Nixon)

The chief justice, he is a conservative who favors state’s rights over broad federal powers; served in President Nixon’s Justice Department before joining the court.

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John Paul Stevens (1975, Ford)

Seen as a solidly middle-of-the-road choice when he joined the court, now viewed as a liberal--possibly more a function of the court’s rightward shift than of a change in his views.

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Sandra Day O’Connor (1981, Reagan)

Before joining court, was active in Arizona Republican politics, including a stint as majority leader of the state Senate. On the high court, considered a swing vote.

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Antonin Scalia (1986, Reagan)

Earned a reputation as a strong conservative while a federal appeals judge; has a freewheeling style during oral arguments.

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Anthony M. Kennedy (1988, Reagan)

President Reagan’s third choice for the open seat Reagan wanted conservative Robert H. Bork to fill. A California law professor before becoming federal appeals judge; has emerged as court’s key swing vote.

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David H. Souter (1990, Bush)

When nominated, was a government lawyer with few writings and no known public stances on hot-button topics; has disappointed conservatives by often siding with the court’s liberal wing.

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Clarence Thomas (1991, Bush)

Best known for calling the partisan free-for-all over his nomination a “high-tech lynching”; served in the Reagan administration and as a federal appeals judge.

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Ruth Bader Ginsburg (1993, Clinton)

Former general counsel of the American Civil Liberties Union; argued six women’s rights cases before the Supreme Court in the 1970s and won five; a stalwart of the court’s liberal wing.

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Stephen G. Breyer (1994, Clinton)

Court’s newest member; former Watergate prosecutor and government lawyer; also taught law and was a federal appeals judge; a consensus builder who dislikes dissenting opinions.

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Source: U.S. Supreme Court; Times staff reports

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Tuning In

The court will release audio of today’s hearings when it ends. It ends about 8:30 a.m. PSI. The Tape will be broadcasted by: KNX (1070), KCRW (89.9 FM) and C-SPAN.