It’s better than Shakespeare. It’s Shakespeare without the dead people.
A powerful ruler has held his fractious kingdom together by nothing more than the dint of his will. He has no power—”neither sword, nor purse”—other than what is accorded him by history and popular acceptance. Well aware of this, the iron-willed monarch (call him Rehnquistio) has managed, for 14 years, to hold the yipping, howling world at bay. There are no “Impeach Rehnquistio” bumper stickers to be found anywhere across the land.
This ruler has crafted for himself a credo that will become, in effect, his legacy: The States shall have rights; the High Court shall not legislate; the High Court shall become smaller, yet in doing so, it shall wax even more powerful. And for 14 years, Rehnquistio has shored up his legitimacy by producing narrow opinions, by avoiding sweeping activism, by rolling back federal attempts to usurp state powers, by encouraging collegiality within his court, and by remaining out of sight of the shrieking villagers with their pitchforks and flaming torches.
Until one day (call it Act II), everything threatens to come apart. With the slightest ticktock of a constitutional moment, family loyalties, blood feuds, wise ministers, betrayal, and a smartass chorus of roving journalists are howling at the gate. And suddenly, like Lear upon the heath, Chief Justice Rehnquistio sees his delicate, glorious kingdom on the brink of collapse.
The chief justice is not immune to the power of the theater. An acclaimed opera-buff, he adds stripes to his own robe after seeing the Lord Chancellor in a production of Gilbert and Sullivan’s Iolanthe. Does he peek out from behind the red curtain as the luminaries settle into their seats in his courtroom today? “Warren Christopher,” whispers the Chorus, scribbling furiously. “There’s Ted Kennedy!” “Bill Daley,” we scribble. “Gorgeous blonde,” whispers someone, then amends it to, “hmmm … make that ‘attractive blonde.’ ” “Orrin Hatch.” “Karenna Gore … “
While Lear had three beautiful daughters to lean on, Rehnquistio has five immutable principles. And as Ted Olson, lawyer for the princeling (George Bushio) rises to speak, it is plain that each of these preciously guarded credos risks imploding today. The world is topsy-turvy. The rumbling of the pillars points up how risky the court’s decision to interpose itself into this conflict has really been:
Judicial Restraint: The first of the Rehnquist credos is that there must always be a justiciable federal issue. Ironically, one of the legacies of the Rehnquist Court will be that it evinced less interest in shaping this country than in reshaping its own role in this country. Like Banquo’s ghost, the court’s power lies in its ability to periodically make itself disappear. It does this by deferring to another body of government whenever it can legitimately do so. The following colloquy is hardly a rarity in the Rehnquist Court:
From the Bench: “I do not know of any case where we have impugned a state Supreme Court in the way you have.”“This is a very important issue,” replies Olson, “A presidential election.”The Bench: “We owe the highest respect to the state court when it says what the state law is.”
The only surprise here is that it’s Justice Ginsburg supplying the standard-issue Rehnquist questions.
Federalism: Federalism is to the Rehnquist Court what civil rights was to the Warren Court. The Rehnquist Court has never hesitated to wage war on Congress and its sneaky attempts to gobble up state powers with the sneaky maw of the federal commerce clause. It is for this reason that the court spends a good portion of the morning seeking out a federal issue to decide. Initially, it seems to be seeking in vain. Kennedy bluntly tells Olson: “We are looking for a federal issue here.” Much later, O’Connor adds, “You have to persuade us there is some issue of federal law here.”
Later, Olson’s colleague Joseph Klock, arguing for Secretary of State Katherine Harris, blurts out: “We haven’t addressed the federal issues.” Scalia snaps back: “Well this is a federal court.”
Strict Construction: There is a band of Merry Men on this court, who can sometimes get awfully grumbly on the issue of “strict construction” (reading the words as the Framers intended). One of the grumbliest is Scalia. Another is Thomas. Yet it is Souter, today, getting down and dirty with the original intent of Title 3, Section 5, of the United States Code—the provision stating that election disputes must be resolved in accordance with “laws enacted prior to” Election Day. Souter insists that Section 5 be read in the context of Section 15 of the Code, which would suggest that Congress, and not the courts, must correct any possible election defects. His close textual reading and rabid insistence on divining the intent of the drafters sound eerily Scalia-like.
Judicial Review: Not since Marbury v. Madison has the Supreme Court stood on the precipice of erasing itself with a single stroke of the pen. This case raises fundamental questions about the viability of judicial review. As Joseph Klock argues, on behalf of Katherine Harris, “Statutory construction may be used to interpret the law, it’s not interpreting if you use the principles of equity in the Florida constitution.” The court must either dodge or answer a question that has nipped at their heels from the time of the Framers to the most recent presidential debate: What is “interpretation” and what does it mean to “legislate from the bench”? And whether or not the Florida Supreme Court was “legislating” seems to turn on whether they were simply parsing state statutes or enacting new laws.
Justice Stevens immediately rejects Olson’s premise—that the Florida Supreme Court “overturned” the Florida Legislature. He suggests it’s arguable that “all they did was fill in gaps” in the Florida law.
Neither Justice Kennedy nor O’Connor appear to be impressed with Florida Deputy Attorney General Paul Hancock’s assessment that the Florida Court didn’t “change” the law by extending the certification deadline. Says O’Connor, “The date changed. That was a dramatic change.”
Later, Tribe will argue that this was not legislating because the Florida Court didn’t immutably change the election deadline to Dec. 7, in memory of Pearl Harbor, for example. It may not just be a punch line. If the Rehnquist Court redefines “interprets” to preclude what was done in Florida, they may well preclude their nine fine selves out of a job.
Don’t Look Stupid: One of the questions the court wanted the parties to address in their written briefs was purely pragmatic: “What would be the consequence of this court’s finding that the decision of the Florida Supreme Court of Florida does not comply with 3 U.S.C. §5?” The subtext of that query was simply: “Assure us that we won’t look stupid.”
The obvious corollary of “Don’t Look Stupid,” therefore, is the “Look Smart” principle. What better way to do so than to take on one of the finest constitutional law professors of our time? Poor Laurence Tribe. It’s all Act V, Scene V, for him out there. Blood and mayhem. His 35 minutes before the court take place in another stratosphere: Where geniuses roam free and the federal Constitution is not safe for you and me. The gist of the dispute—whether the Florida Supreme Court’s equitable power to promote voting rights somehow trumps its duty to interpret legislation—is barely comprehensible. Tribe goes head to head with Scalia on this point, and the light sabers are buzzing so hard no one can think. The one mortal moment happens when Tribe, at a rare loss, blurts: “The disenfranchising of people isn’t very nice.”
The court (and Rehnquist) knew it was gambling with its own legitimacy, indeed with its own legacy by taking on this case. It could have dodged the claim of being partisan by issuing a unanimous decision. It won’t. It could have dodged the claim of being “activist” by refusing to take this case on the grounds of mootness, ripeness, or any number of self-abnegating Rehnquist principles. It didn’t. So tonight, as we sleep, somewhere on a heath Rehnquistio wanders, muttering, “Why, why … why.”