Our Imperial Judiciary

We need to bring a gavel down on arrogant judges like Florida's supremes

Constitutional crisis in Florida. Oh, the hand wringing at the prospect of the Florida legislature challenging the state supreme court's decision in Gore vs. Bush. Constitutional crisis? Why not? It's about time we had one.

It might finally allow a cathartic resolution of the debilitating constitutional problem we have been suffering under for 40 years: arrogant, activist courts trampling the prerogatives of elected legislatures and elected governments in deciding how we are to live. Christmas creches snatched from public displays under the baroque, three-pronged "Lemon test"; Miranda rules plucked out of thin air; the right to abortion suddenly located in the "penumbra" of the Constitution.

I happen to like Miranda. I happen to support legalized abortion. But many citizens don't. And they rightly feel aggrieved that these momentous decisions were made by unelected grandees in black robes. (The U.S. is the only Western country to have legalized abortion without the consent of its legislature.)

Americans have suffered their disenfranchisement largely because of a traditional, habitual respect for the U.S. Supreme Court. They have no such instinctive respect for the Florida Supreme Court, which until yesterday they had never heard of. Its attempt to throw a presidential election by inventing post facto election law is surely a bridge too far. It begins with the justices setting themselves up as defenders of the "will of the people" against what they contemptuously call "hypertechnical reliance upon statutory provisions," or what other people call "adherence to the law."

Hypertechnical? The law's single technicality was that ballots be counted by 5 p.m., Nov. 14. This was hardly a law riddled with minutiae. It had a simple, clear standard. The court's real problem is not technicality but legality, what it disdainfully terms "sacred, unyielding adherence to statutory scripture." Courts, it seems, write scripture; legislatures write talking points.

The justices then denounce Florida secretary of state Katherine Harris for "imposing an arbitrary seven-day deadline." They then proceed, without irony, to impose their own arbitrary five-day deadline. (Hers, unlike theirs, was not arbitrary but statutory.)

They accuse her of attempting to "summarily disenfranchise innocent electors" by adhering to the deadline. Really? Then what about the court's own deadline of Nov. 26? It caused Miami-Dade officials to shut down their recount completely. According to its own logic, the court has disenfranchised thousands of Miami-Dade voters. But the whole disenfranchisement charge is absurd in any case. The plain fact is that any deadline must necessarily "disenfranchise" voters--or it would not be a deadline, i.e., a date after which otherwise legal ballots must be ignored. We must nonetheless have deadlines, or no election would ever end.

Moreover, the court repeatedly defined its role as tribune of the unspoken plaintiffs, citizens whose votes have gone un(re)counted. Why then did it not order a recount of all the counties of Florida? If refusing to reconsider spoiled ballots disenfranchises voters of Palm Beach, how could the court tolerate residents of 64 other counties having their dimpled ballots languish forever in un-hand-counted obscurity?

This central contradiction alone--elevating recounts in Democratic counties to high principle while ignoring recounts in the rest of the state--renders the court's ruling a travesty. A welcome travesty, however. Because this time the lawless lawmaking was made in the full glare of publicity and with such obvious partisanship. (All seven judges are Democratic appointees; the selection to the court of five of them was strongly influenced by Dexter Douglass, a Gore lawyer who addressed the court during the dramatic oral argument.) And because its very outrageousness--rewriting the rules of a presidential election after the election--dramatizes the extent of judicial usurpation as has nothing since Roe v. Wade.

Hence the search for remedies: the Florida legislature threatening to reassert its prerogative to make law, either by reaffirming the original language of the election law that the court grossly misconstrued, or by simply appointing their own presidential electors; Congress contemplating exercising its own authority to recognize electors, should the Florida delegation turn out to have been manufactured by a court.

This would indeed be a constitutional crisis, but one brought on by the courts themselves, and one we have long needed to confront.

The issue is judicial supremacy. We acquiesce to it for one very good reason. The reason is not theoretical (it being hard to understand why the one unelected branch should be supreme over the other two) but practical. We all need a place where the buck stops. When Nixon and Congress were at odds over the White House tapes, the supremacy of the Supreme Court enabled a final resolution of the issue.

Fine. But for the judiciary to earn--and sustain--that pre-eminence, it needs to exercise restraint. After all, it has no power of its own. Unlike the legislature, it can raise no revenues. Unlike the executive, it commands no police forces. Its power rests entirely on people's belief in its legitimate authority. But that belief can--and should--be forfeited when courts do what the Florida Supreme Court has done: wantonly usurp their two coequal branches, denying both the plain language of a law and the plain authority of the official elected to administer that law.

Such a court deserves to be challenged. Yes, that will create a crisis. But crisis is preferable to supine acquiescence. Should the Florida court be put in its place--overridden and thus shorn of its emperor's new clothes--we will have at last begun to rectify the constitutional imbalance created by the imperial judiciary. This is not a constitutional crisis. This is a constitutional opportunity.