What Now?

Dear Michael,

I am much less qualified than you are to predict what the Supreme Court will do, but I too suspect that the court will rule relatively narrowly and in a way that will not—as so many people hope—resolve this imbroglio. Unlike you, I am—in my own untutored way—relatively sympathetic to the Florida Supreme Court’s ruling. It does seem to me from my admittedly partial reading of the Florida statute that there are contradictory provisions in it and that the court was acting reasonably, although certainly aggressively and controversially, in deciding that one provision (the authorization of hand recounts) trumped another provision (a deadline). I am not willing to predict which way the U.S. Supreme Court will rule, but either way they will not end this impasse. Probably.

The more intriguing question to me is why the Supreme Court agreed to hear this case at all. Was it really a deep philosophical interest in the question of the relative power of the legislature and the courts in Florida? Was it a sense of obligation to clarify legal issues in the midst of a major national dilemma? Was there, is there, consensus on the court about the propriety of intervening and on the proper nature of that intervention? No one expected the court to intervene in this case, something for which, as far as I know, there is no precedent at all. Given that we know nothing about the court’s motives for taking this unusual step, it is at least conceivable that we underestimate their intentions. Might they in fact be planning to do what William Safire has been urging them to do for works, and what many Americans apparently want them to do: take control of the mechanics of this controversy and somehow settle it? I suspect not, but at this point almost nothing would surprise me.

The two scenarios you envision—the court ruling for Gore and confirming the status quo of the moment, or the court ruling for Bush and confirming the status quo as of November 14—would change little and settle nothing. But the issue that was in part the source of this battle—the difference between the pre-certification phase and the contest phase of the election—seems now a more important one than might have been predicted. As Mike Kinsley pointed out here a few days ago, the heart of the argument in favor of imposing the deadline was to ensure that there would be time for a contest. That was also the Florida Supreme Court’s rationale for setting its own tight deadline. But as soon as the vote was certified, the public (if not necessarily the legal) character of this struggle rapidly changed. Republicans argued that the contest, which they had gone to court to protect, was somehow illegitimate and even unpatriotic, and the Democrats have not been able to shake the image of futility and gracelessness that the Republican argument created. Certification also makes it much easier for the Florida Legislature to intervene to select electors regardless of what the courts decide. So, the real resolution of this dispute may lie not in what the Supreme Court rules this week but in the narrowness of the ruling of the Florida Supreme Court two weeks ago. If they had really been intent on allowing a thorough recount actually to matter, they would have had to have imposed a much later deadline, and they would have had to intervene more aggressively to ensure that the recounts actually took place (and perhaps also to impose standards on them). They would, in other words, have had to take over the election—something their critics charged them with doing at the time but which it now seems clear they came nowhere close to doing. And that’s what the Supreme Court will have to do if it is intent on resolving this battle. I very much doubt it will.