Florida's justices made a stunning challenge to their federal brethren. What gave them the nerve?
If you were within earshot of a television early last week, you
heard the consensus of the legal pundits. Florida's Supreme
Court was running scared. It had been slapped down by the U.S.
Supreme Court Monday and told to rethink its decision ordering
manual recounts. And the experts were fixated on the fact that
at oral argument last Thursday, Chief Justice Charles T. Wells
asked whether his court even had a right to hear the case. The
Florida justices, conventional wisdom held, were looking for a
way to bow out gracefully from a showdown with the U.S. Supreme
But the Florida court defied expectations last Friday and handed
down one of the nerviest decisions in the annals of American law.
A bitterly divided 4-3 court ordered that every Florida county
tabulate or recount its undervotes. The ruling had Gore partisans
extolling the noble tradition of an independent Judiciary--the one
actor, in a state run by Republican Governor Jeb Bush and
Republican ally Katherine Harris, free to do the right thing. But
to the Bush camp, the Florida justices were just liberal power
grabbers, intent on overturning a certified election result
favoring the Republicans. Florida house speaker Tom Feeney
blasted a renegade court, "more partisan than judicial."
Within 24 hours, the U.S. Supreme Court weighed in with a
bitterly divided blockbuster of its own: a 5-4 order directing
the Florida canvassing boards to halt the recounts. Once again,
the reaction was divided and partisan, but flipped in a fun-house
mirror. This time, it was the Bush camp's James Baker saying it
was "very, very gratifying" that the U.S. Supreme Court had
"indicated a willingness and an interest in hearing this very,
very important case." And it was the Gore campaign charging that
a court was trying to hijack the will of the people.
The high court's dramatic order set the stage for what may be the
greatest clash of courts in American history. As the U.S. Supreme
Court considers the case this week, the debate will be phrased in
legal niceties: deference to state courts vs. deference to state
legislatures; Article II of the U.S. Constitution and 3 U.S.C.
Sec. 5. But beneath the law talk is a power struggle of epic
proportions. The stakes could hardly be higher. How the U.S.
Supreme Court rules could, of course, determine the next
President of the United States. But something even larger is
hanging in the balance: whether Americans will continue to have
faith in the courts, the rule of law and the integrity of the
A showdown between the Florida and the U.S. Supreme courts is
really no contest. Under federalism, the U.S. Supreme Court can
overrule state courts where issues of federal law are involved.
But the real drama lies in whether five Justices will actually
decide to do that. Unlike the high court's first ruling in the
case, which was carefully if precariously unanimous, the latest
one broke down in just the ideological way everyone had hoped to
avoid. The five conservatives--Chief Justice William Rehnquist
and Justices Sandra Day O'Connor, Anthony Kennedy, Antonin
Scalia and Clarence Thomas--voted to issue the stay. The four
liberals--Justices John Paul Stevens, Stephen Breyer, Ruth Bader
Ginsburg and David Souter--voted to let the counts go on.
It seemed clear at oral argument in the first round that the
Justices were split on partisan grounds. "The most worrisome
thing," says University of Chicago law professor Cass Sunstein,
"was that the conservatives just gave Gore's lawyer a hard time,
and vice versa." And the curt order the court issued Saturday
showed the rift is still there. The dissenters issued a stern
rebuke to the majority. By stopping the recount, Justice Stevens
wrote for all four dissenters, the majority was abandoning its
"venerable rules," including the well-established principle of
deferring to state courts on questions of state law. The
dissenters concluded that the majority had "acted
unwisely"--which passes for serious trash talk on the high court.
The court may ultimately break down along these same partisan
lines. Justice Scalia, the court's most conservative member, all
but boasted in a short opinion that his side would have the
votes in the end. That the stay was issued at all, he wrote,
"suggests that a majority of the Court" believes Bush has "a
substantial probability of success." But it may be significant
that, unlike the four-person dissent, Scalia's concurrence was
signed by him alone. The Democrats are already talking about
peeling away a moderate member of the conservative bloc--Kennedy
or possibly O'Connor. Until a ruling comes down, those two
Justices will be two of the most powerful people on the planet.
The battle of the courts started with the Florida justices, and
it's hard to overstate the boldness of their sweeping recount
order. American courts have certainly been historic before:
ordering public schools to admit blacks in the 1950s and helping
oust President Richard M. Nixon by ordering him to turn over the
Watergate tapes in the 1970s. But those decisions were handed
down by the U.S. Supreme Court, steeped in prestige and equal in
the Constitutional scheme to the President or Congress. The
Florida court is made of seven people even most Floridians
couldn't have picked out of a lineup two weeks ago.
Making its work tougher still, this Florida Supreme Court was
besieged by rivals on all sides. Above, the U.S. Supreme Court
has overturned it once, and some say the Republican majority
there might be willing to do it again this week. Below, Judge N.
Sanders Sauls of the Leon County Circuit Court, who has been at
odds with the Florida Supreme Court for years, had declined to
order recounts. In Atlanta, a federal appeals court was
considering a Bush lawsuit aiming to throw out all the recounts.
And in Tallahassee, the Florida legislature--another old enemy--has
been threatening to ignore the court and simply select the Bush
Electoral College delegates. As for Jeb Bush, he was feuding with
the Florida justices even before they tried to make it more
difficult for his brother to reach the White House.
There were deep divisions as well in the Florida Supreme Court's
own ranks. It is Jurisprudence 101 that when a court delivers a
bombshell decision, the judges struggle to be unanimous. But the
Florida court split 4-3, and the rift was a bitter one. Attached
to the court's ruling was a dissent from the Chief Justice
warning that the majority risked sending the nation into "an
unprecedented and unnecessary constitutional crisis"--a powerful
built-in sound bite for critics waiting to tear the majority
The striking thing about the division on the court was how
unexpected the fault lines were. The breakdown was not along
party lines: six of the seven justices are Democrats. Nor was it
ideological: Leander J. Shaw Jr., one of the court's most liberal
members, dissented. And political paybacks don't seem to have
carried the day. Peggy A. Quince--the one justice whose
credentials were signed by Jeb Bush--ruled for Gore. In fact, the
only pattern to emerge was generational: the four justices most
recently appointed to the court all sided with Gore.
Still, court watchers like to try to find correlations between a
judge's background and how he decides cases. And biography may
have played a role in this one. The Florida Four--the justices
who voted for the recounts--are all outsiders of one sort or
another. Quince has spoken publicly about facing racism and
sexism in her career: at her first trial as a lawyer, the judge
assumed she was the defendant. (And at the first oral argument
in this case, when other justices were scrupulously referred to
as "Your Honor," Quince was at one point addressed as "Ma'am.')
Harry Lee Anstead, who is white, was raised by a single mother
in a housing project. R. Fred Lewis, a native of West Virginia,
keeps a dish of coal dust on his desk to remind him of his
family's coal-mining origins. Barbara J. Pariente, who is
Jewish, was raised in an affluent New Jersey suburb by parents
who did not attend college. "Although I had the benefits of my
father working very hard," she once said, "I understood he had
to work very hard for what we had."
The Florida Supreme Court majority did its best to craft an
armored tank of a decision: one that would stand up to the legal
bazookas and hand grenades the Republicans would be aiming at it.
The decision's most quotable passages are its sweeping appeals to
the nation's most cherished common values: "This Presidential
election has demonstrated the vulnerability of what we believe to
be a bedrock principle of democracy: that every vote counts." But
below the surface, in the arguments and citations, the majority
was busily building in every legal defense it could muster.
The court clearly knew that reversal by the U.S. Supreme Court
was a possibility, and it worked hard to address the high court's
concerns. The U.S. court believed that the Florida one, by
relying in part on its interpretation of the state constitution
rather than on its statutes, may have substituted its own
judgment for the rules laid out by the legislature. It was not
clear, the U.S. court said, that the Florida justices adequately
took into account two federal laws that speak to that point:
Article II of the U.S. Constitution, which authorizes state
legislatures to determine the "manner" of selecting electors, and
3 U.S.C. Sec. 5, a federal statute governing controversies over
the appointment of electors.
The Florida justices began their decision by meeting these
concerns head-on. The first words of their legal analysis are
"Article II." And the first page contains a lengthy quote from 3
U.S.C. Sec. 5. The Florida Supreme Court emphasized that the
Florida legislature's statutes "govern our decision today." And
to underscore that point, the decision was heavily marbled with
references to state statutes.
But some court watchers think that may not have been enough. When
the U.S. Supreme Court issued its ruling vacating the Florida
Supreme Court's first decision, it directed the Florida justices
to provide a clearer explanation for their reasoning. At the time
it issued its ruling ordering the recounts, the Florida court
still had not attended to that homework assignment from on high.
It can be argued that the court addressed it implicitly in its
new decision, which avoided making the same mistake, or that the
first ruling has been overtaken by events. Still, the U.S.
Supreme Court is not used to being ignored.
As it put together its decision, though, the Florida Supreme
Court had other adversaries to worry about. There was already bad
blood between the justices and Judge Sauls, the trial court judge
whose decision they were reviewing. In 1998, in a highly unusual
move, they summoned then Chief Judge Sauls to discuss charges by
courthouse employees and other judges that he was running the
Leon County Circuit Court in a dictatorial fashion. Stung by the
criticism, Sauls resigned as chief judge. In accepting the
resignation, the justices cited "the continuing disruption in the
administration of justice" under his stewardship. Sauls was
outraged. "He told me that he could not believe that the Supreme
Court justices, of all people, were not interested in the facts,"
his wife told the New York Times.
Even in friendlier circumstances, reversing a trial court is a
tricky business. Appellate courts must be careful about
second-guessing lower courts on facts, which the trial judge has
often seen firsthand. They have more leeway in reversing for
mistakes of law. The Florida justices shrewdly based their
decision on what they say were legal mistakes by Judge Sauls on
standard of review and burden of proof. Decisions of the
canvassing boards do not deserve the highly deferential "abuse
of discretion" standard Judge Sauls applied in deciding not to
second-guess them, the Florida justices said. Better still, the
court found that he wrongly held the Gore plaintiffs to an
onerous "standard of a reasonable probability" of a recount
changing the outcome; it said he failed to notice that the
relevant statute had been changed last year. Ouch.
The court also waged a frontal assault on Judge Sauls' fact
finding. The justices rejected his conclusion that Gore had not
met his burden of showing that sufficient legal votes were
rejected to warrant a recount. In part, they relied on what they
called "the ultimate Catch-22" in Judge Sauls' approach: he had
concluded there were not enough rejected votes without ever
looking at the ballots themselves.
The Florida Supreme Court tried to build in protections against
the Bush campaign's federal attack. A key Republican claim has
been that the recounts violate the 14th Amendment's
equal-protection guarantee because they were occurring in some
counties and not in others. The effect, the Republicans said, was
to give extra voting rights to citizens in counties that have
recounts. The justices' response was, once again, shrewd: order
undervotes counted in all counties, and no one is legally
Despite its heavy fortifications, the Florida Supreme Court's
decision may yet be vanquished. One of the best clues right now
to the U.S. Supreme Court's concerns may be Scalia's brief
concurrence to the stay order. In it, he expresses doubt--as
Florida Chief Justice Wells did in his own dissent--about the
constitutionality of letting the standard for counting hanging
chads and dimples vary from county to county. And Scalia raises
the long-standing Republican concern that multiple recounts may
lead to degradation of ballots.
One of the most intriguing issues is the question of irreparable
harm. To get a stay, a party has to show it will suffer permanent
damage without it. The damage of halting the count seems clear:
it will be hard for Gore to win the election if the counting is
put off much longer. But it is Bush who got the stay--and Bush who
the majority said would be harmed if the counting continued. What
would the harm be? It could, Scalia writes, cast "a cloud upon
what he claims to be the legitimacy of his election." It's a
tricky argument: if the court wants to throw out the votes in the
end, it would still be free to do so. But Scalia seems to be
admitting that the court is afraid that once the votes are
counted--once the genie is out of the bottle--the American public
won't believe that the votes should in fact be set aside. Of
course, it seems all but inevitable the ballots will ultimately
be counted, either by the media or by academics looking to
determine who actually won in Florida. If Bush does not in fact
have the most votes, it's not clear that delaying the count until
after Inauguration Day will prevent a "cloud" from forming over
What will happen? The U.S. Supreme Court stay was certainly a
major blow to the Gore camp. But Republicans who think it's all
over may be celebrating too soon. Predicting how Supreme Court
Justices will vote is, even in mundane times, a perilous game.
Conservatives have sometimes been disappointed by Kennedy, who
has voted with liberals on issues like gay rights and school
prayer. And right-to-lifers once counted on O'Connor to provide a
fifth vote to overturn the abortion protections of Roe v. Wade,
something she has resisted.
These predictions are all the more perilous when, as now, the
Justices have a rendezvous with history. The votes of the nine
Justices in this case will not only determine their own
reputations but, quite likely, the reputation of the U.S.
Supreme Court for years to come. --With reporting by Viveca
Novak/Washington and Timothy Roche/Tallahassee