Justices Take Up Florida Battle

Friday’s arguments before the U.S. Supreme Court strongly indicate that there is little prospect the justices will issue a broad, unanimous ruling that would quickly resolve the presidential election, said legal experts from across the political spectrum.

Before the arguments, many observers had predicted that the nine justices, though ideologically divided, would try to reach a unanimous ruling as the court did 26 years ago when it ordered President Nixon to turn over the Watergate tapes--a decision that led to his resignation.

But having listened to Friday’s arguments, lawyers from around the country said the justices’ questions and comments indicated that the court--like the nation--is sharply divided.

“I saw unanimity going in. I don’t see it coming out,” said Richard A. Lazarus, who runs the Supreme Court Institute at Georgetown University Law Center and has argued 11 cases at the high court.

“I don’t see any way for them to come together on the merits” of the case, said Carter Phillips, a Washington attorney who has won 18 cases at the Supreme Court.

Indeed, many who listened to the 90-minute argument--while cautioning that it is risky to predict the court’s actions by the justices’ questions--said the court appeared to be divided along a now-familiar 5-4 split that would favor Texas Gov. George W. Bush. Such a division, they said, could pose a threat to the court’s credibility with the nation.

Washington attorney Bradford A. Berenson, who served as a law clerk to Justice Anthony M. Kennedy in the early 1990s, said he was “pretty certain that there are four votes for Vice President [Al] Gore on either procedural or substantive grounds.”

At the same time, the court’s conservative wing--Chief Justice William H. Rehnquist and Justices Antonin Scalia, Kennedy and Sandra Day O’Connor--all seemed by their comments to be leaning toward the arguments favored by Bush. The fifth member of that group, Justice Clarence Thomas, said nothing during the argument but almost always votes with Scalia.

The court could “risk fracturing on the same fault line that has divided the country and the Florida electorate,” said Yale University law professor Akhil Reed Amar, author of a book on the Bill of Rights. “They need to be careful.”

A few attorneys interviewed by The Times thought the evident divisions among the justices could lead them to dismiss the case on technical grounds. One possibility, for example, would be to rule that events had rendered the issues before the court moot.

Justice Stephen G. Breyer, an appointee of President Clinton, indicated by his questions that he might be leaning in that direction--a result that in practical terms would be a victory for Gore.

“Is there any respect in which this really makes a difference, this case,” Breyer asked. “What’s the consequence of our going one way or the other now in this case?”

But Phillips said he thought Breyer and other members of the court’s moderate-to-liberal wing would not be able to garner the votes for such an outcome.

Dismissal Votes a Possibility

Conceivably, said New York attorney Floyd Abrams, a 1st Amendment specialist who has argued before the court 13 times, Rehnquist could decide to round up votes for dismissal.

If Rehnquist decided to do that, he might be able to gather as many as seven votes, Abrams said. He suggested that the chief justice might follow that route “to preserve the institutional autonomy of the court from the political process.”

“That is particularly so if it goes 5-4 for Bush with the five most conservative members being in the majority,” he added.

Another possible way out for the justices would be a 5-4 decision that reversed the Florida Supreme Court ruling that went for Gore but on narrow grounds that would not end the political debate.

“There can be no game, set and match, as a matter of law,” coming out of this argument, Lazarus said.

Stanford University law professor Pamela Karlan, who clerked for Justice Harry A. Blackmun in the mid-1980s, agreed.

“This does not strike me as a court that wants to do something bold and sweeping,” she said.

In fact, only one of the four attorneys who argued on Friday--Joseph Klock Jr., who represented Florida Secretary of State Katherine Harris--suggested that the court could issue a decision so broad that it could knock out Gore’s current challenge in the Florida courts.

The prospect of a ruling that sweeping seems unlikely, the legal experts interviewed said, particularly in light of what Lazarus called the “divisive” questions posed by the justices.

On the other hand, Lazarus and several others said that even a narrow ruling against Gore would heighten the political pressure on him to concede the election, although legally Gore would still be entitled to continue contesting the Florida outcome in courts there.

Several attorneys noted that the court spent little or no time on some issues that the parties had made a big issue of outside the court--including the Bush team’s argument that the actions of the Florida Supreme Court violated due process of law.

Bush attorney Theodore B. Olson was not asked one question about that. Consequently, several attorneys, including Phillips, said they were surprised that Gore attorney Laurence H. Tribe had started his argument on that issue.

“That flabbergasted me,” Phillips said.

There also was no discussion of an issue that generated considerable furor in recent days--the assertion by the Florida Legislature that it has the right to pick its own slate of electors regardless of what else happens.

“I would be very surprised if any Supreme Court ruling addressed the role of the Florida Legislature,” Berenson said. “That issue is not before them.”

Broadcast May Lend Credibility to Ruling

Even legal experts who were concerned about a narrow division on the court said they hoped the unprecedented broadcast of the court’s arguments would help lend credibility to the eventual ruling.

“I am hopeful that a significant part of the nation listened to the tape and knows this was serious, scholarly and intellectual and that at the end of the day a 5-4 split is reasonable. I thought the quality of the advocacy and the way the court hit the issues helps with the question of legitimacy,” said Phillips, who clerked for Chief Justice Warren Burger in 1978-79.

On the other hand, Loyola Law School professor Laurie Levenson and William Norris, a former judge on the U.S. 9th Circuit Court of Appeals, both noted that the discussion was “very complicated.”

Unless a listener had studied the Constitution or the relevant statutes closely, the debate would have been difficult to follow, Levenson said.

All the lawyers who listened to the argument said they were impressed with the sharpness of the questioning by the justices. “I have been here many times and I have never heard so many questions,” said Gore legal advisor Warren Christopher, who clerked for the late Justice William O. Douglas and attended the hearing.

“The justices were strikingly well-prepared,” Karlan said. “They were more impressive then the lawyers.”

Those who listened heard a classic session before the high court--long on complicated debate and short on grand rhetoric, said Berenson.

“The very best Supreme Court arguments do not look or sound remarkable. A really good, effective Supreme Court argument sounds like a low-key conversation about the law among very smart people,” he said. “That’s what we had today.”