Along With Facts, Justices Weigh Court’s Reputation

The U.S. Supreme Court, wading into uncharted political waters, risks long-term harm to the judiciary if it renders a decision in Bush vs. Gore that many Americans could view as politically and ideologically driven, legal scholars warned Monday.

“The justices are very much aware that their own integrity is at stake here,” said Clark Kelso, a conservative constitutional scholar at McGeorge School of Law in Sacramento. “Their credibility is going to depend in large part on whether the majority of the court can support its decision with a reasoned explanation that passes legal muster.”

The Supreme Court has weathered many political crises over its 210-year history--from the infamous Dred Scott decision on slavery to Franklin D. Roosevelt’s court-packing controversy and the constitutional showdown with President Nixon over the Watergate tapes. But the current case puts unprecedented power in the high court’s hands.

As David Boies said Monday after arguing the case for Vice President Al Gore before what appeared to be a divided court: “This is the first time that the United States Supreme Court has ever taken a case that would decide the future president of the United States.”

Already, Gore supporters on TV talk shows and radio airwaves have begun attacking the politics of the court’s majority, saying that its decision Saturday to halt selective manual recounts in Florida revealed the justices’ conservative biases.

Gore himself has avoided criticizing the high court. Campaign spokesman Douglas Hattaway said in an interview Monday: “We’re confident that the court will make its decision based on the law, and we’re hopeful that all of them approach this matter with an open mind.”

But Jonathan Turley, a law professor at George Washington University, said the court’s 5-4 stay of the recounts--and, in particular, Justice Antonin Scalia’s unusual statement issued in support of the order--may have put the court’s objectivity in question.

Scalia, noting that the court appeared likely to rule in Gov. George W. Bush’s favor, declared that continuing to count the votes before the Supreme Court’s review would cause “irreparable harm” by “casting a cloud” over the legitimacy of the election.

“Scalia may have proved the greatest asset for the Gore legal team: His statement triggered a virtual avalanche of criticism and claims of politicization,” Turley said.

But some legal observers noted that several justices appeared to be staking out a more moderate approach in their questions during oral arguments.

“I detected in [Monday’s] arguments that the justices were reaching for areas of common ground with their colleagues,” said Jan W. Baran, an election law expert here. “They realize that a controversial political decision can injure the court for some time.”

Rather than an actual death blow to Gore, a more politically tenable stance for the court might be to issue an order similar to its unanimous Dec. 4 decision, which sent the election case back to the Florida Supreme Court for clarification, several scholars suggested.

Given the political sensitivities surrounding the case, “the conservative justices have a great incentive to have Al Gore die at the hands of someone else,” Turley said.

Other legal experts, however, said they still expect the court to rule for Bush, probably on another 5-4 vote. And that will likely set off an even more furious round of finger-pointing over the court’s alleged political biases.

The most significant impact under that scenario may be felt by Bush himself, said Allan Lichtman, presidential historian at American University in Washington.

The fracas could force Bush to appoint more moderate judges to fill any high court vacancies because of the opposition that more conservative nominees undoubtedly would generate in the Senate confirmation process, he said.

As they seek to help resolve the Florida election, “the justices are in an untenable position,” said Eugene Volokh, a constitutional law professor at UCLA. “There are credible arguments on both sides. But the sad thing is that even if the justices act in good faith because they really believe Bush’s side, they’ll be looking over their shoulders and asking: ‘How is this going to look to the public?’ And that’s not good.”

Erwin Chemerinsky, a constitutional scholar at USC, agreed that public perception is critical to the court’s credibility.

“I believe these justices see themselves as intellectually honest. I don’t think they’re approaching this as, ‘How can we make sure George W. Bush wins?’ I think they’re trying their best to follow the law,” Chemerinsky said.

But no matter their intentions, he added, a decision in Bush’s favor from a court stacked with seven Republican appointees “will hurt the court in the eyes of a large segment of the American public. In the short term, there will be a loss in credibility.”

But, he added, “this court has survived a lot.”

In fact, presidential scholar Stephen Hess, who attended Monday’s arguments, thinks the firestorm that would surely be generated if the Supreme Court awards the presidency to Bush might be worth it in the end.

A resolution by the Supreme Court would avoid a host of other more chaotic scenarios allowing Congress, the Florida Legislature, Florida Gov. Jeb Bush or even Gore himself--as the tiebreaker in the Senate--to have a say in the final decision, he said.

“The court has taken hits before,” Hess said. “In a strange way, if this comes out the way I think it’s going to come out, the Supreme Court would be taking a hit for all of us. . . . Yes, people will mutter under their breath about the Supreme Court, but in the end I think people will still respect their authority.”