Rehnquist Suggests Historical Parallel to Election Ruling

Just weeks after the controversial Supreme Court decision that ended manual recounts in Florida’s presidential voting--effectively awarding the White House to George W. Bush--Chief Justice William H. Rehnquist gave a little-noticed history lecture suggesting that sometimes members of the court may have to become involved in political matters to prevent national crisis.

Discussing the role of Supreme Court justices in a commission that decided the disputed 1876 election in favor of Republican Rutherford B. Hayes, Rehnquist argued that their involvement was vindicated by the results.

“Hayes was a better president than some of his detractors predicted, and the nation as a whole settled down to a more normal existence,” Rehnquist told 500 members of the John Carroll Society, a Catholic service organization, at a Jan. 7 brunch, according to a text released by the court. “The political processes of the country had worked, admittedly in a rather unusual way, to avoid a serious crisis.”

The speech “helps explain what was in Rehnquist’s mind about why he took jurisdiction under such questionable circumstances” in Bush vs. Gore, said Michael Les Benedict, a scholar of the Hayes-Samuel Tilden election who teaches history and constitutional law at Ohio State University.

“He’s making a rather clear statement of what he thought the primary job of our governmental process was” in the Hayes-Tilden conflict, Benedict said. “That was to make sure the conflict is resolved peacefully, with no violence.”

Rehnquist and the four other conservatives on the court--Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Sandra Day O’Connor--decided Dec. 12 to intervene and halt the Florida recount, handing the presidency to Bush. The court’s more liberal justices--David H. Souter, Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens--objected that the court should stay out of the case.

Though not openly framed as an analogy to the 2000 election, Rehnquist’s speech shows he was conscious of the parallels. Describing how Hayes and Democrat Tilden dispatched lawyers to Florida in 1876, Rehnquist noted jokingly that, “There were no early morning flights out of Reagan National Airport to Miami in those days.”

The Electoral Commission in the Hayes-Tilden election was named by Congress in 1877 to settle disputes over the electoral votes of Florida, South Carolina and Louisiana where the true vote total was never known, largely because of fraud and violent intimidation of African American voters by pro-segregation Democrats.

With Joseph Bradley, a Republican justice selected for his politically independent reputation, casting the deciding vote, the commission awarded the states to Hayes, giving him a one-vote victory in the Electoral College over Tilden, who had captured the popular vote.

Democrats did not accept that result, however, until Republicans agreed to allow the restoration of white supremacy in the South. Even then, many said the Hayes presidency was illegitimate.

Rehnquist acknowledged that “The practice of Supreme Court Justices serving on the Electoral Commission raised a question at that time that has recurred since” and that “there are obviously very good reasons for members of the Court to say “no” when asked.

“The argument on the other side,” Rehnquist said, “is that there is a national crisis, and only you can avert it. It may be very hard to say ‘no.’ ”

In the context of the Bush-Gore litigation, Bush’s lawyers submitted briefs urging the justices to prevent a Hayes-Tilden-style “constitutional crisis.”