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.  Click here to read Michael McConnell’s Saturday message on the court’s logic in halting the recount.

Dear Michael,

When last we corresponded, Gore was writing his concession speech and the media were preparing his political obituaries. Now they may all be doing so again. But what a remarkable few days in between. I appreciate your thoughtful analysis of the legal basis of the various court decisions of this weekend. You will not be surprised if I take a somewhat different view of their meaning.

Presidential campaigns are never pretty. There is too much pressure, too much scrutiny, too much raw ambition run amok. Candidates and their campaigns have seldom behaved well at any point in our history; the opprobrium we direct toward politicians today is not much different from the opprobrium that those who understood the process directed toward them in the past. “Presidents in general are not lovable,” Walter Lippmann once wrote many years ago. “They have had to do too much to get where they are.”

And so it is hardly surprising that every political figure who has been drawn into this post-election battle—in which the passion to win is not much leavened by the need to take into account the likely reaction of voters—has been diminished and discredited: the two candidates themselves; their principal aides; Florida’s governor and secretary of state; Jim Baker, Bill Daley, Karen Hughes; the Democrats who have tried to suppress the military ballots and throw out the Seminole County absentee ballots; the Republican congressional staffers (and Republican members of Congress) who tried thuggishly to shut down a legal recount in Dade County; and on and on. One should expect that of politicians. The point of politics is to win elections, and this one can only be won ugly.

But if there is any institution that one might expect to rise above the cutthroat politics of the present moment, it would be the Supreme Court of the United States. And that is why it is so shocking to see the court plunging, apparently eagerly, down into the political muck with everyone else. You are almost certainly right that there are things in the Florida Supreme Court’s decision last week that can form the basis of a reversal. Florida election law, from what I’ve seen of it, seems to have so many complicated and contradictory provisions that almost any decision based on it seems likely to be subject to reversal. I am equally certain, however, that there is nothing in the Florida court’s decision that required the Supreme Court to intervene in this process. And certainly nothing that justifies doing so in the form of a stay that has the practical result of settling the contest even before briefs are filed and arguments are heard.

My own opinion is that the Florida Supreme Court’s decision provided the first opportunity since Nov. 7 to produce a reasonably fair resolution of this dispute. Republicans had a point that it was unfair to have a recount only in Democratic counties (even though they themselves had refused to request recounts in their own counties). But Democrats also had a point that it was unfair to attempt to freeze the election at an artificial moment when thousands of ballots that might contain legal votes remained unexamined. Florida law clearly provided them with a recourse—hand counts—and the Republican strategy was a very simple one: stop any additional votes from being counted. By ordering an examination of all uncounted ballots in all of Florida, the court made it possible to come as close as we could plausibly come at this point to an accurate picture of how Floridians voted. As you noted, Bush may well have won such a recount. The recounts in Republican counties would probably have produced new votes for him; and I think everyone has overestimated the number of Gore votes that could be found in Dade County, which did not vote for him nearly as overwhelmingly as did Broward or Palm Beach. Had Bush won in that way, I think most Democrats would consider him to have won legitimately. Had Gore won in that way, I rather doubt the same could be said of the Republicans, so invested have they become in the idea that Bush has already won and that any step to challenge that victory is tantamount to theft. But even a Gore victory would have had more legitimacy under such a process than anyone’s victory can have now.

The Florida court, like the U.S. Supreme Court, split in its decision. But the dissenters did not argue that the decision was illegal or unconstitutional as much as they argued that it was unwise, that it would create “chaos.” Unlike the U.S. Supreme Court, the Florida court had virtually no choice but to hear these cases. That’s their job. Whether they did it well or badly—and in some ways they did it both, I think—they were doing what they were expected to do.

The same cannot be said for the U.S. Supreme Court, which most people expected to stay out of this and which four of the nine justices believe should have stayed out of this. So why did they intervene? There is no compelling constitutional question at stake here. The temptation of most of those who disagree with their decision will be to say that naked partisanship was at work. I suspect it’s not that simple. I feel certain that the majority who voted for the stay believed that they were acting to avert a travesty of justice. But I also believe that this was as much an emotional as a legal decision. Like everyone else, the justices appear to have absorbed the impassioned mindset of the antagonists in this contest—and to accept the apocalyptic image of what a challenge to the Florida result entails. How else can we explain Justice Scalia’s extraordinary—and as far as I can tell unprecedented—press release on Saturday, refuting his colleagues’ dissent on the stay. To Stevens’ entirely reasonable argument that a stay was not justified because the Bush campaign had not made a persuasive case that a recount threatened them with irreparable harm, Scalia (who seems to be playing the role of the Tom DeLay of the court this week) responded that a recount would indeed produce such harm by “casting a cloud upon what [Bush] claims to be the legitimacy of his election.” Weighed against the irreparable harm this stay does to Gore—rob him of any reasonable prospect of winning an election that he still might have won—that seems an absurdly feeble argument. Protecting a candidate’s controversial claim of legitimacy does not seem to me to be something the Supreme Court should be exerting itself to protect.

Scalia also argued that there was a constitutional question about the varying standards different counties were using for counting votes. I agree that these varying standards raise questions of fairness. But of law? The Florida election law—which is the basis of Scalia’s strange claim that the disputed ballots may not be “legally cast votes”—clearly leaves the decision on standards to county election boards. The Florida Supreme Court, which many hoped would establish a consistent standard itself, seems to have refrained from doing so because to do so would go beyond what the law established as a standard: “the clear intent of the voter.”

But what was most shocking about the court’s decision (or at least about Scalia’s window into that decision, the only window we have at the moment) is his statement—before briefs are filed, before oral arguments, before any deliberation—that “the petitioner has a substantial probability of success.” I believe you are right, Michael, that the court would never have granted a stay had it not already decided to overturn the Florida decision. But one would think they would at least go through the motions of deliberating honestly.

The legitimacy of the Supreme Court is one of its most precious assets, and through most of its recent history the court has gone out of its way to protect that legitimacy—with some success. Despite numerous highly controversial and highly ideological decisions in the last few years, the Rehnquist Court has retained an image among most Americans of reasonable impartiality. One way the court has done that is to stay out of explosive cases that it didn’t have to adjudicate. Another way it has done so is to be careful—when it does take on an explosive case, and particularly when it takes on an explosive case involving the presidency—to rule unanimously. The court was unanimous in the Nixon tapes case in 1974. It was unanimous in the Paula Jones case in 1996. (And it was, of course, unanimous as well in perhaps its most important decision of the last half century—the Brown decision in 1954.) But here, the court has plunged heedlessly into the miasma of this battle, exposing its own bitter internal divisions to the world and ensuring that its decision will be reviled and repudiated by about half the American public. Rehnquist’s tenure as chief justice is probably nearing its end. He will be remembered primarily for this.

In the most notorious decision in the Supreme Court’s history—the Dred Scott case of 1857, in which the court ruled that slaves had none of the rights of citizens because they were “private property” and that (according to Chief Justice Roger Taney) no African-American could ever be a citizen—the court was so divided that every justice wrote a separate opinion. The decision was hailed as a great act of statesmanship in the white South. In the North, it was widely and violently denounced as deserving the same respect as a pronouncement by political hacks “in any Washington bar room.” The court’s reputation did not recover for many years. Taney, a great Jacksonian Democrat in earlier years, is remembered now for almost nothing but his infamous opinion in this case.

What we are seeing today is not, of course, the Dred Scott case. The moral issues at stake here are far less compelling, the likely practical consequences much less important. But by intervening gratuitously in a political battle that did not require their intervention, by doing it so bitterly and openly divided, and by failing to transcend the polarization of opinion that has made an adequate settlement of this election virtually impossible, the court has done itself—and the nation, which needs a final tribunal capable of attracting the respect of the public—a much greater “irreparable harm” than it has prevented in Florida.