May It Please The Court

By John Cloud

We like to say we hate lawyers, that they pickle and fillet and jelly common sense until we're all flummoxed. For a while now, and particularly in the past few weeks, it has become fashionable to say that politics has been lawyered to death, that we face the cheerless prospect of election-by-lawsuit forever.

And we may, at least whenever elections are as close as this one. But there was a moment last week when nine lawyers, the Justices of the U.S. Supreme Court, brightened rather than blanched American democracy, asking us to look beyond the merely dimpled. Friday was a day unlike any other since the election--unlike the past month of candidates with their dueling speeches and seas of American flags, of squawking pundits on the cable channels, certainly unlike the silly spectacle of the previous day, when news choppers chased a Ryder truck full of ballots as it trundled up a highway for eight hours. On Friday we saw how muscular reasoning can cut through the noise.

The moment probably won't last. The sleeper absentee-ballot lawsuit from Seminole County or Gore's unprecedented challenge to the presidential election results before Judge N. Sanders Sauls or some other court proceeding could end up determining the election's outcome. The U.S. Supreme Court may even decide not to rule at all on the case George W. Bush brought before them, Bush v. Palm Beach County Canvassing Board. But at least for 90 blessed minutes Friday morning, Election 2000 didn't feel like an argument between overheated parents at a Little League game.

Capitol Hill and the White House have their own institutionalized pageantry (think the State of the Union address), but when Dale Bosley, the marshal of the Supreme Court, came into the chamber on Friday to declare, "God save the United States and this honorable court," it was hard not to feel a little bit moved. At a time when presidential candidates buss their wives on TV and the Republican and Democratic leaders of the House of Representatives don't speak for months at a time, the ringing proclamation of "Oyez, oyez, oyez" was exhilarating, a signal that the highest court in the land was about to turn its attention to our thorniest crisis.

True, the court's dignity has come at the price of its staggeringly anachronistic aloofness. When the court boldly thrust itself into the 20th century by allowing those newfangled audiotapes of Friday's session to be released the same day, it was praised as a step forward. But no other branch of government could get away with such operational opacity. Recently, when a member of the media suggested that the high court's public information office might notify reporters of schedules via e-mail, he was told that the computers in that office are not Internet enabled.

Still, Friday's high-court theater showed what can happen when the shouters are kept outside. Yes, there were plenty of them: more than 1,000 citizens loudly exercising their First Amendment rights, including Falun Gong members and Maryland high school kids, Republican mothers and Al Sharpton, a lady breezing by in a mink coat and a haggard man with a braided beard who was clutching a protest permit. At one point, the Bushies began yelling, "Con-cede again!" Which of course drew the Gore partisans' response, "Don't get snippy!" But scattered among the protesters were plenty of regular folks who waited hours--and even spent the night in tents--for a chance to watch the proceedings in person. Perhaps they weren't so different from the drivers who had paused at a rest stop off Florida's Ronald Reagan Turnpike the day before to have their picture taken with the Ryder truck coming up from West Palm Beach. But the court watchers got much more for their trouble.

Inside the chamber, the American elite assembled for the arguments that most legal scholars had predicted wouldn't come. It was quite a sight, as warring parties had to cram together in the 400-seat hall. (Court personnel said they hadn't seen Friday's frantic demand for seats since 1989, when a high-profile abortion case, Webster v. Reproductive Health Services, was argued.) Senator Edward Kennedy sat uncomfortably next to Barbara Olson, wife of Bush lawyer Theodore Olson and author of Hell to Pay, a vituperative book about Kennedy's new colleague Hillary Rodham Clinton. Gore adviser Warren Christopher was there, and so was Clinton hater Bob Barr. All four Gore children showed up, as did Caroline Kennedy Schlossberg.

Earlier last week Vermont Democratic Senator Patrick Leahy, the ranking minority member of the Judiciary Committee, had phoned chairman Orrin Hatch to ask if he would walk with Leahy to the Supreme Court hearing. The Senators felt it was important to stage a bipartisan show of support for the American judiciary, which has taken a drubbing since the Florida Supreme Court ruled to extend secretary of state Katherine Harris' certification deadline. Even Florida judge Charles Burton, the long-suffering head of the Palm Beach canvassing board, flew up to see the show.

And what a show it was. The Justices allowed 50% more time than usual for arguments, perhaps because the case raised an important issue about the very role of supreme courts: whether they have the right to inject themselves into state election disputes.

The Bush team wanted the Justices to overturn the Florida Supreme Court's Nov. 21 ruling. Olson, a stellar appellate lawyer who worked in Reagan's Justice Department alongside Kenneth Starr, argued that the Florida court's ruling amounted to the creation of a new law after the election--a breach of the federal Electoral Count Act of 1887, a law previously untested in court and exhumed recently by G.O.P. archaeologists. The law was written about a decade after the last truly chaotic American election, the Rutherford Hayes-Samuel Tilden race of 1876, when Hayes became President after the wheeling and dealing of competing slates of Southern electors.

The Gore team was led by Supreme Court war-horse Laurence Tribe, the Harvard law professor who last week received his 30th souvenir quill from the court, which gives the pens to attorneys who argue before it. To Olson's argument, Tribe replied that the Florida justices weren't writing new code but merely interpreting conflicting Florida statutes. (One sets a tight deadline for certification and the other allows hand recounts, which can take a long time.) And anyway, Tribe argued in his typically agile brief, the electoral-count law simply offers incentives to states who follow its provisions--but doesn't punish them if they don't.

The Justices sliced into both sides with razor-like questions. It's a fool's game to predict outcomes from the Justices' tone, but legal experts say if Gore had the intuitive edge going into Friday, the line of questioning tilted in Bush's favor. Overall, however, "Bush had the uphill battle," says the University of Chicago's Cass Sunstein, because he had to convince the Justices that they have a reason to insert themselves in a state matter. "We're looking for a federal issue," Republican-appointed Justice Anthony Kennedy stated Friday. Olson gave the Justices two: the 1887 law and Article II of the U.S. Constitution, which gives state legislators, not a state's judges, the authority to decide how members of the Electoral College will be chosen.

Olson's groping for a case to establish federal jurisdiction over the Florida election was a bit rich, since he is a leading member of the Federalist Society, the conservative group that is highly protective of the rights reserved to the states by the Constitution. But it was perhaps an even lustier irony to see Tribe, a liberal Democrat who has spent his career battling states'-rights advocates like Chief Justice William Rehnquist, use some key states'-rights decisions to bolster his brief that the Florida Supreme Court ruling should stand.

Ideology stamped many of the exchanges. Clinton appointee Ruth Bader Ginsburg chided Olson because, she said, he had "impugned a state supreme court...I mean, in case after case, we have said we owe the highest respect to what the state supreme court says is the state's law." That wasn't the only moment when Olson, a veteran of 13 arguments before the court, seemed rattled. What's worse, none of the Justices seemed willing to buy his creative theory that the Electoral Count Act had been violated.

But Tribe didn't have an easy time of it either, particularly when Justice Antonin Scalia, a Reagan appointee and the intellectual leader of the court's conservative wing, bustled in with an argument based on a less developed part of Bush's brief--that the Florida court didn't rely solely on statutes of the Florida legislature when it fashioned its solution to the case but relied more on the state constitution and the expansive notion of having every vote count. If that's true, then there's a violation of Article II of the Constitution. At the end of the day, Tribe told members of his team that he was surprised by the prevalence of that line of questioning, which could spell doom for the Vice President. Another bad sign: Justice Sandra Day O'Connor, a Reagan appointee who often provides the swing vote in 5-4 cases, also scrutinized Tribe closely--and rescued a stammering Olson at one point with a softball query. Many court watchers saw her words as a sign of an emerging 5-4 majority for Bush.

What was wonderful about the proceedings wasn't just the seriousness and deftness with which everyone approached the issues but also the inside look we got at the subtle drama playing out. Because of the court's obsessive secrecy--former clerks and administrators who speak publicly about what goes on there are treated as outcasts--we rarely get a glimpse of how the Justices' minds work. (By contrast, we get far too close a look at what goes on behind closed doors on both ends of Pennsylvania Avenue.) Swing voters O'Connor and Kennedy seemed to bat questions between them about how they might find a federal role for the court, almost conversing with each other through the advocates. At one point, Justice David Souter, the moderate appointed to the court by Bush's father, helpfully gave Tribe a page number. "Page 3-A of the blue brief, I am reliably informed," Tribe quipped. A beat passed, and then Rehnquist chimed in, "It won't get you an extra two minutes."

The justices could rule early this week, given the speed with which the court has already moved on this case. (The record time in recent years is a four-day turnaround from oral arguments to ruling in the 1971 Pentagon-papers case.) Judicial experts offer three scenarios:

THE BUSH WIN

The Justices rule in favor of Bush that the Florida Supreme Court wrongly extended the certification deadline to include hand counts. The legal effect of this decision would actually be quite small. Bush's lead would increase from 537 votes to the earlier margin of 930 votes, but Gore could still proceed with his contest before Judge Sauls, which is based on a different set of laws entirely. Gore knows this, which is why he wasn't heavily weighed down by Friday's events. Says Democratic strategist Paul Begala: "Hell, we already lost" on the certification of Bush's lead. "Now it's in the contest phase."

Politically, however, a Bush win would be a stunning public relations defeat for Gore, one that could erode his support in the nation and in Washington. Last week moderate Senate Democrats said they would consider the election finished if the high court rules against Gore. "Nobody has the stomach for this stretching beyond early December," says a senior aide to one Democratic Senator. Even Gore's campaign aides see an unfavorable ruling as a death blow. "They could lock it up for Bush," says a longtime adviser. "For Gore, they could let him live, but they can't lock it up for him."

Although some Bush supporters fantasized about it last week, it's highly unlikely that the court would directly rule on any of the other legal matters related to the election--the contest, for instance, or the Seminole case. As a matter of course, the Justices refrain from ruling on issues not directly put to them. Even so, says law professor John Yoo of the University of California, Berkeley, "whenever the court does anything, it's a significant political event. What they say will have a ripple effect on all these other cases in the lower courts and the other branches of government."

THE GORE WIN

The Justices affirm the Florida Supreme Court ruling, perhaps adding a short instruction that the Florida court rewrite its ruling to recognize that the state legislature, not the Florida constitution, controls how electors are appointed. Gore wouldn't gain any votes from such a ruling, but he would gain an important talking point. "He needs disputes to the Bush claims from someone other than his campaign staff, someone else saying these votes need to be counted," says one of the Vice President's advisers. Some Democratic graybeards say Gore's losses in the courts forced him on television too often last week to explain why he keeps going. "It's demeaning to him, and he's using up all his credibility," says a senior Democrat.

THE PUNT

Even after Friday, many legal experts were still shocked that the court took the state case to begin with. They contend that the Justices will simply decide not to rule, availing themselves of an option used several times each term: dismissing the case as "improvidently granted," a phrase at once imperious and penitent that means the Justices believe the case does not present the issues they thought it did when they accepted it. The court may wait a while to decide whether to do this, looking carefully at how Gore's contest proceeds. "I think the Justices will be concerned about coming out with a divided opinion, because the public will see it as a partisan thing, and the court will lose some credibility," says Susan Low Bloch, a constitutional-law professor at Georgetown. The Justices may also worry about delegitimizing the Florida Supreme Court by tossing out one of its most high-profile decisions--and one that was unanimous.

Last week Bush's aides felt upbeat, though not quite cocky, about Friday's high-court arguments. "Ted Olson himself urged us not to try to read into the mood of the Justices," says Bush spokesman Dan Bartlett. But even if they lose with the high court, the Bushies believe they're doing very well indeed in the Florida courts. The end of last week brought strong evidence for that proposition. On Friday the Florida Supreme Court refused to order both immediate hand counts of disputed ballots and the revote in Palm Beach County sought by voters confused by the butterfly ballot.

And Saturday Gore's contest of the election in Sauls' courtroom continued at a glacial pace, bogged down in statistics and chads, just as Bush's lawyers had hoped. Every delay brings them closer to Dec. 12, when the states must appoint electors to the Electoral College. Even if Sauls does rule in Gore's favor this week that some 14,000 ballots from heavily Democratic areas must be counted, the counters may not have enough time to get it done.

Gore's fast-moving team offered just two witnesses on Saturday, a statistician and an expert on voting machines, but Bush cross-examinations saw to it that their testimony took up most of the day. Bush's team offered two witnesses and planned to call 18 more. At times the proceedings dwelled on small but crucial matters, like whether old chads build up behind ballots and sometimes prevent a hole from being fully punched. Gore won a victory on that point, but Bush lawyer Phil Beck expertly cross-examined the Gore team's statistician, Yale professor Nicolas Hengartner. The professor had to admit that he had in fact never inspected a certain ballot that he claimed to have examined in his affidavit. The embarrassing admission didn't change Hengartner's overall point that there were serious problems with punch-card voting, but it may have damaged his credibility with Sauls.

As the clock ticks, Gore faces mounting political problems. Polls show that the public's attitude about his challenge splits pretty evenly down party lines, but people are growing more impatient with each passing day. Moderate Democrats in Congress remain skittish and ready to bolt--and if they abandon Gore this week, he will almost surely have to concede. Some of them argue that Gore won Florida but should give up anyway. "Every Democrat feels that Gore is getting screwed," says a top Democratic congressional aide. "But at what cost?" Party leaders feel that Democrats will have a better chance of retaking Congress in the 2002 elections if Bush is President. Although minority leaders Richard Gephardt and Tom Daschle flew to Florida last week to rally Democrats and sit through a staged phone call with Gore, they didn't suggest the trip. Gore's people had to ask.

The Democrats have tended to be more unified on those days when Republicans are shouting about Gore's theft of the election or stirring up heavy-handed protests in Florida. Another chance for Democratic unity may come this week, if the Republican-controlled Florida legislature meets in a special session to consider naming a slate of Bush electors to be sent to the Electoral College--regardless of the outcome of Gore's contest. These legislators are some of Bush's most loyal servants, willing to send the Bush electors to Washington on Dec. 18 even if the Florida courts decide Gore electors are the rightful appointees.

The Florida Republicans say they are merely ensuring that Florida does not lose its voice when the Electoral College meets. "The courts along with the Gore campaign created this mess; we didn't," says house majority leader Mike Fasano. "They've forced our hand." But others say the legislature's Republicans have become wildly partisan, so eager for a Bush victory that they are even grumbling about his brother, their Governor. "There's a growing sense among those true-believer Republicans that Jeb Bush didn't come through for us in this presidential campaign," says Richard Scher, a political-science professor at the University of Florida. "Their attitude now is, 'We've got to take matters into our own hands.'"

Gore's people don't mind such over-the-top rhetoric, in part because they think Bush has been hurt by reaching for the prize too fast. And Democrats have started to talk about moral victory even in the face of electoral defeat. In the coming weeks or months, they say, counts by independent groups will show that Gore won Florida. Over the weekend, the Miami Herald published an analysis of voting patterns in each of the state's 5,885 precincts suggesting that Gore would have won the state by 23,000 votes if voters hadn't made errors and balloting equipment hadn't failed. Such a validation will be small consolation to Gore if he loses, but it delights other Democrats--and it would undermine President Bush. "It would be devastating to not only have lost the popular vote but to also have been determined to have inaccurately been declared the Electoral College winner," says Senator Evan Bayh of Indiana. "You have no basis for legitimacy."

Which leads us back to the U.S. Supreme Court. The Justices may have taken up this peculiar election precisely to avoid that sort of conclusion. In the year 664 in Dark Ages Britain, an abbot stepped down from a coveted spot as bishop after his predecessor, missing and feared dead, turned up alive and well. The abbot became the patron saint of good losers. His name is actually St. Chad. The Justices know that neither Bush nor Gore will be moved by St. Chad's grace. But they may find a way to uphold the legitimacy of the presidency even without it.

--Reported by Ann Blackman, Sally B. Donnelly, Tamala M. Edwards, Viveca Novak, Karen Tumulty and Douglas Waller/Washington; John F. Dickerson/Austin; Mitch Frank and Eric Roston/New York; and Tim Padgett and Timothy Roche/Tallahassee

With reporting by Ann Blackman, Sally B. Donnelly, Tamala M. Edwards, Viveca Novak, Karen Tumulty and Douglas Waller/Washington; John F. Dickerson/Austin; Mitch Frank and Eric Roston/New York; and Tim Padgett and Timothy Roche/Tallahassee