The Court’s Decision Is Law, Not Politics

Has the case of Bush vs. Gore enhanced or diminished the stature of the U.S. Supreme Court? The verdict of cable punditry is darkly negative, aided by some overheated and isolated dissenting observations from the court itself. This is unfortunate and misleading. The Supreme Court has ably performed its “unsought responsibility” of resolving the serious federal issues thrust upon it by a remarkably close presidential election and its overextended legal contest.

The antagonists are unlikely to ever agree on the issue of who won the 2000 election. Al Gore has the popular vote; George W. Bush the electoral. The disagreements produced by the legal skirmishing are likely to remain sharp for some time. Bush insisted that the Florida Supreme Court radically revised the Florida election code. Yet an objective observer belonging to neither party would likely point out that knowing where statutory interpretation ends and judicial lawmaking begins is difficult to say the least. Gore, and his lawyer David Boies, marched up and down the judicial system demanding that all the votes be counted without ever bothering to explain why improperly cast votes--so-called undervotes--should be counted in Florida when hundreds of thousands of similar ballots (no doubt for both candidates) are discarded in elections throughout the country.

Probably the most common-sensical contribution of the U.S. Supreme Court to the debate and election-that-almost-knew-no-end was to bring to light nationwide statistics revealing that an estimated 2% of ballots cast do not register a vote for president for whatever reason, including deliberately choosing no candidate at all, and voter error, such as voting for two candidates or insufficiently marking a ballot. The court is surely right that this is an “unfortunately” high number of ballots to set aside, but absent a less equivocal citizenry or investment in better machinery for voting, it is simply a fact, not a basis for reversing the outcome of a national election.

Is the court in jeopardy of losing its well-deserved reputation as the guardian of the rule of law because it dared to resolve this politically charged dispute? Hardly, not unless the justices themselves or the now ubiquitous “legal analysts” perpetuate or encourage the sinister notion of judgment by partisan affiliation by airing their frustrations in exaggerated dissent or commentary.

The ruling of the U.S. Supreme Court was not along partisan or ideological lines. As the justices pointedly observed in the opinion, “seven justices of the court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy.” Yes, two justices would have let the recount continue with specific constitutional instruction, and two more were inclined that way but for the absence of time. However, as the court majority concluded, the recount could not be conducted “without substantial additional work,” including adoption of an adequate statewide standard for determining a legal vote, provision for the orderly judicial review of disputes and even something as basic as the reconfiguration of tabulation machines and the design of software to identify undervotes and overvotes.

The court’s decision is law, not politics. The measured tone of the majority opinion and the responsible release of the audio tapes of the competing arguments reveal our third branch to be a suitably cautious, yet genuine, protector of individual liberty. While the eminent jurist Learned Hand once remarked that “the spirit of liberty is the spirit which is not too sure that it is right,” seven members of the court were undoubtedly correct to insist that an unequal evaluation of ballots could not coexist side by side with the venerable standard of “one person, one vote.”

Is the court diminished? No, liberal and conservative justices alike protected our cherished democratic tradition with a soundly reasoned per curiam voice of restraint.