What Now?

Alan Brinkley is Allan Nevins Professor of History at Columbia University and the author most recently of Liberalism and Its Discontents (click here to buy it). Michael McConnell is the Presidential Professor of Law at the University of Utah. Slate asked them to keep a running commentary on the presidential endgame.        

Dear Alan,

The Supreme Court argument was the first in history to be broadcast the day it occurred. Usually, it takes months before the tapes become available to the public. As in the impeachment affair, the nation got an education in obscure points of constitutional law. The court demonstrated its usual degree of seriousness and smarts, and the lawyers were unusually good. I am not sure, though, that we know much more than we did before. It is a “risky scheme” (as Al Gore might say) to predict the outcome of a case from the content of the oral argument. (In my last argument, about a year ago, the justices treated me like a punching bag and barely touched my opponent—then voted 6-3 in my clients’ favor.)

But if we can judge from the argument, the court is just as split about this election as everyone else. As expected, the four liberal justices seem inclined to read the Florida Supreme Court decision as a run-of-the-mill attempt to reconcile inconsistent provisions of the election code. As Justice Ginsburg pointed out, that does not raise any issue of federal law—even if the Florida court was mistaken, as a matter of state law, in its conclusion.

The five moderate-to-conservative justices were inclined to view the Florida decision as a substantial departure from the statute. Justice O’Connor, who is often a swing vote, seemed especially emphatic on this point. In this, they were torn between two conservative principles of judging: the principle of deference to state institutions regarding state law (which favored the Gore side) and the principle of strict construction of statutory language (which favored the Bush side).

Justice Scalia and Chief Justice Rehnquist, somewhat unexpectedly, focused on an aspect of the case that had not been emphasized by Bush’s lawyers. They interpreted the Florida court opinion as resting on the Florida state constitution. An 1892 U.S. Supreme Court decision, McPherson v. Blacker, appears to hold that it is unconstitutional for a state court to override its legislature’s rules for electing electors on the basis of the state constitution, because the U.S. Constitution vests authority over the manner of selecting electors in the state legislature, not in the state as a whole. Under that reasoning, the Florida Supreme Court might have violated the U.S. Constitution by complying with the Florida Constitution. Isn’t that a strange twist?

Notwithstanding the tenor of the argument before the court, I remain skeptical that the court is going to render a 5-4 decision on so political an issue. The court has a strong institutional interest in maintaining at least the appearance that it is above the partisan fray. What a coincidence it would be, if the more liberal justices just happened to read the law in a way that favors Gore, and the more conservative justices happened to read it in a way that favors Bush!

The only way to avoid an unseemly partisan split is for the court to find a way to dispose of the case that does not favor either side. It might even be possible to put together a unanimous opinion along such lines. Let us look at the possibilities.

First, and most likely, the court could find that the case is not “ripe” for judicial determination. Justice Breyer raised this possibility during the argument. The immediate effect of holding that the Florida Supreme Court erred would be to shift the certified result from the 537 vote margin on Nov. 26 back to the 930 vote margin that would have been certified on Nov. 18 if the Florida Supreme Court had not intervened. This 400 vote difference has no legal effect, unless and until other developments, such as those taking place in Florida courtrooms, make it significant.

A case is “unripe” if the effect of the decision depends on future events that might or might not occur. Thus, the court would be on firm legal ground in holding that it has no jurisdiction to decide the case under current circumstances. This would enable the Supreme Court to stay out of the fray for now, while holding open the possibility of future intervention if it became necessary.

The court might also declare the case “moot.” A case is “moot” when the decision no longer has any concrete effects that could be corrected. This is the opposite of a finding that it is not “ripe.” An “unripe” case is one that was brought too soon; a “moot” case was brought too late. This case might be deemed “moot” on the ground that even if the Florida court was wrong to delay the vote certification and the attendant “contest” process, there is nothing the Supreme Court can do about that, now. Since the second certification came to the same conclusion as the first, the Florida Supreme Court’s error (if it was error) is of no further significance.

Dismissal on mootness grounds, while possible, strikes me as unlikely. The Florida decision still has the practical consequence of determining the baseline from which current “contests” of the election results will proceed. That consequence may be minor, but even a minor consequence should be enough for purposes of jurisdiction.

A more interesting and radical possibility is that the court could dismiss the case on the ground that it presents a nonjusticiable “political question.” A “political question” is a legal issue whose resolution has been vested in another branch of government, or for which there are no “judicially manageable standards” for decision. For example, if President Clinton had been convicted by the Senate of the “high crimes and misdemeanors” for which he was impeached, that judgment would not have been reviewable in court, because the Constitution states that the Senate has the “sole Power to try all Impeachments.”

The Florida Legislature filed an amicus curiae brief (written by Harvard professor Charles Fried, a former solicitor general and former justice of the high court of Massachusetts) arguing that the case now before the Supreme Court is nonjusticiable because the question whether the Florida courts have followed previously enacted law is entrusted in the first instance to the Florida Legislature and secondarily to the Congress. Under this view, if the Florida Legislature concludes that the Florida courts have adjudicated any contests over the election of electors under rules other than the previously enacted statutes of Florida, the legislature is entitled to appoint a slate of electors in accordance with its own understanding of the law. The U.S. Congress, in turn, would determine whether the decision of the Florida Legislature was proper. The ultimate result would be determined by the representatives of the people rather than the courts.

Before dismissing this idea as illegitimate, consider the following question: In the abstract, which branch of government—the state supreme court, or the state and federal legislatures—presents the greatest risk of abusing its power and disregarding the manifest will of the people? If the seven appointed justices of the Florida Supreme Court were to abuse their power (which I am not predicting), they would suffer no serious consequences. They cannot be removed from office, and if they step down can expect to assume lucrative positions in private practice, where the gratitude of the winning party can be made manifest. If members of a legislative body did the same, they suffer the serious risk of political disaster for themselves and their party. Surely there are enough Democratic senators (one would be enough) whose patriotism and integrity would not permit them to join in a blatant effort to “steal the election” for Gore; and surely there are enough Republican congressmen (a half-dozen would be enough) who would bolt the party rather than support a blatant effort to “steal the election” for Bush. If not, our nation has more serious problems than outdated voting machines.

It seems unlikely that the court could produce a unanimous opinion holding that the Florida Legislature has authority to decide whether the Florida courts followed the law. The statutes bearing on this are unclear, and such a holding would be no less controversial than reaching the merits. It is somewhat more probable that the court could hold that the ultimate decision is constitutionally vested in Congress. Congress is the body that ultimately judges election contests for the House and the Senate, and it could perform the same function in the case of disputed elections for elector. Holding that Congress is in charge would keep the Supreme Court out of the nasty business of partisan politics, while still recognizing a federal watchdog over the state.

Finally, the court could dismiss the case “as improvidently granted.” This does not require a good reason. It happens once or twice a year, usually when a case turns out not to raise the important legal issue that the court expected. That might be a good description of this case. When the court granted the case, it appeared that the Florida decision was a decisive victory for Gore, which would pave the way for manual recounts that would shift the vote totals to the vice president. By Nov. 26, however, it was apparent that the Florida decision had no such effect. Even under the Florida decision, Bush was the certified winner. Whether there should be more recounts under the “contest” procedure (the question now before Judge Sauls) involves a different section of the Florida law. The path of least resistance, therefore, might be to dismiss the petition for review, which would leave the Florida court decision in place without affirming it. The only drawback is that the court might lose face from admitting that it acted “improvidently” in so high-profile a controversy.

The most likely result, I think, is that the court will declare the case unripe—perhaps even unanimously. The second most likely is to dismiss the case as improvidently granted. Either of the other legally plausible results—a decision on the merits or a decision that the case is a nonjusticiable political question—would be highly controversial and would probably split the court along partisan lines. That could happen. But I suspect it will not.

Meanwhile, attention has shifted to the Leon County Courthouse, where a decision is expected imminently.