One Real Question

Underlying all the U.S. Supreme Court debate Monday over equal-protection guarantees, the intent of the voter and the appropriate reach of the Florida Supreme Court was a single question, the most basic one the court has faced in this matter: Does every vote count?

In a second round of solemn yet spirited argument, a majority of the justices appeared not to have moved from the presumption they seemingly held in stopping the recount Saturday--that George W. Bush won the election and that evidence to the contrary at this late date was invalid. Justice Antonin Scalia made his position clear Saturday: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to the petitioner [Bush] and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”

Although questioning from the justices can be a poor predictor of their ruling, a majority nonetheless seemed to believe that the Florida Supreme Court’s decision Friday restarting the manual recount of votes was beyond the scope of its authority. If the court rules this way, upholding Bush’s challenge to that Florida decision, the court will effectively end any possibility of manual recounts, clearing the way for Bush’s installation as president.

On this road, however, lie dangers for the court and treacherous political consequences.

Certainly Bush lawyer Theodore B. Olson got a tough grilling Monday, especially from those who dissented from the decision to halt the recount. Justices Ruth Bader Ginsburg, David H. Souter, Stephen G. Breyer and John Paul Stevens questioned Olson’s contention that the Florida court’s review of Florida election statutes “wrote” new law and, as such, violated federal constitutional guarantees.

But Gore lawyer David Boies was pummeled by Scalia, Chief Justice William H. Rehnquist and, at times, Justices Anthony M. Kennedy and Sandra Day O’Connor. (Justice Clarence Thomas, as is embarrassingly routine, had nothing to say.) Boies was asked whether the absence of specific standards in the law to guide manual recounts amounts to a denial of equal protection to Bush voters. But there is no equation here. A lack of clear statewide standards for a manual recount, thus possibly producing different outcomes in different counties, is not the same as denying the vote by failing to count it at all.

No matter their politics, Americans rightly resist the notion that Supreme Court justices tailor their opinions to fit a party or the president who appointed them. Indeed, the court’s history is marked by justices who, once on the bench, moved in a direction quite different from the ideologies of the appointing presidents. Souter, appointed by President George Bush--who believed him to be a reliable conservative--is but the most recent example.

In this historic case, we continue to believe a recount best serves the nation’s interest because it is the action that would be most able to remove the taint of election uncertainty. At the least, Scalia’s tortured and anti-democratic logic should not frame the decision. There is no appeal in this issue beyond this court, and its words may determine whether the jagged splits produced by the postelection battle have any chance of healing.