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The Winner in Bush v. Gore?

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It's Chief Justice Rehnquist, who runs the most trusted institution in the U.S.

The postelection stage groaned with a menagerie of personages vying for attention: politicians, judges, lawyers, talking heads. Yet who proved himself--once again--the craftiest, the savviest pol of them all? Chief Justice William H. Rehnquist.

It began with the unanimous first opinion he coaxed out of a court deeply and obviously divided on the matter of Bush v. Gore. Its beauty was its subtlety. Indeed, it was so subtle that it took three days for the TV mavens to figure it out. At first, they thought the court had merely ducked. In fact, it had issued a veiled but devastating rebuke to the Florida Supreme Court for creating a new deadline for certifying Florida's presidential election.

By vacating that decision with a mere query, the Rehnquist court strained to keep from humiliating its Florida subordinate. But the query--Could you kindly provide justification for a decision that appears baseless?--sent a pointed message to the willful Florida justices.

That chastisement had its effect on some of the Florida supremes. At oral argument, you could almost see Chief Justice Charles Wells and a few of his colleagues looking over their shoulder wondering whether Rehnquist & Co. would approve of their behavior.

But a willful majority of four justices decided to take Rehnquist up on his challenge. Despite Wells' warning that by ordering a partial statewide recount--something with "no foundation in the law of Florida"--they were inviting rebuke and reversal by the U.S. Supreme Court, they forged ahead and opened up yet another chapter in the recount saga.

But this one threatened a constitutional crisis: the collision of legislatures and courts of a kind unseen in more than a century. Re-enter the Rehnquist court. Amid the chaos, somebody had to play Daddy. Its earlier admonition having been ignored, the Supreme Court eschewed subtlety this time and bluntly stopped the Florida Supreme Court in its tracks--and stayed its willfulness. By 5-4, mind you, and Rehnquist doesn't like 5-4 in questions of this magnitude. But to avoid a constitutional train wreck, he was ready for the court to assert itself and thus bring a welcome finality to the postelection madness.

It was a high moment--first deft, then bold--that served to reinforce the high court's supremacy. But Rehnquist could only do so because for nearly two decades he has, against the odds, maintained the Supreme Court's prestige and mystique. This week he cashed in, but he had been building the capital for years. At a time when respect for every other institution of government has declined precipitously, the country still looks to the Supreme Court for authority and finality.

Polls routinely show trust in the Supreme Court exceeding that of Congress and the presidency, to say nothing of the press, which ranks down there with lawyers. Asked who should be involved in deciding this election, 60% said the Supreme Court, and only 38% said either Congress or the Florida legislature.

How does Rehnquist do it? There are many answers. One, often overlooked, is paramount. Rehnquist has been relentless in resisting the vanity and the flattery of television in the courtroom.

It has not been easy. The agitation for television is constant. When Bush v. Gore reached the high court and the networks demanded entry with cameras, the chorus grew particularly loud. Rehnquist said no. His denial seems anachronistic, but it represents a deep understanding of the modern sensibility. Like Machiavelli, he knows how important an air of mystery is for maintaining authority. And TV's very essence is to demystify. Everything it touches becomes familiar and ordinary, ripe for irony and camp.

Had the Supreme Court allowed cameras in for the Florida case, is there any doubt that all nine Justices would have led Saturday Night Live the very next night? Rehnquist got a taste of television's capacity for leveling when he and the gold stripes on his robe became the subject of much media mirth during the Clinton impeachment trial.

The camera is unfailing in reducing whatever it observes. Nearly everyone in this constantly televised drama has been diminished: the Florida Supreme Court, the state legislature, the lawyers, the candidates. Why, after 24/7 TV coverage of chad counting by microscope and horoscope, even the belief in the very process of counting votes has been irreparably damaged.

Some things are best left unseen. In the television age, the way to avoid trivialization is to remain veiled. Rehnquist has brilliantly managed the politics of invisibility. The very opaqueness of its workings have helped the court maintain its unmatched authority and supremacy. People tremble before it. Quite an achievement in an age in which people tremble before very little.


Cover Date: December 18, 2000



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