The court became the loser by giving America its winner
The Supreme Court
By Mary Dejevsky in Washington http://www.independent.co.uk/news/World/US2000/2000-12/loser141200.shtml
14 December 2000
The ruling of the United States Supreme Court in the historic case of "George W Bush and Richard Cheney vs Vice-President Albert Gore et al" might go down in the annals as the judgment that crowned Mr Bush the 43rd President of the United States. And shook the court to its very foundations.
You don't have to guess at the anger that attended this decision. It is there for all to see in the opinions of the judges who dissented. If the court wanted unanimity on this, possibly the most momentous ruling in its history, then it failed utterly, publicly and miserably.
The strongest condemnation was presented by Justice John Paul Stevens, who said the majority ruling had upheld the Bush camp's "unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed" and this would "only lend credence to the most cynical appraisal of the work of judges throughout the land".
And in a passage that is bound to enter the law textbooks of the future, he concluded: "Time will one day heal the wound to that confidence in the courts that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."
The decision suggests the court's majority – all five justices are Republicans appointed by presidents Nixon, Reagan or Bush – were determined to block Mr Gore from winning the Florida election by manually counting disputed ballots. By overturning the Florida Supreme Court's ruling, the federal court doomed Mr Gore's chances.
Bitterly opposing the majority decision, Justice Stephen G Breyer, a Clinton appointee, condemned it bluntly as a "self-inflicted wound – a wound that may harm not just the court but the nation".
The faultline running through the court was identical to the one that emerged when it heard the Bush campaign's first appeal almost two weeks ago. Then, when challenging the constitutionality of manual recounts in Florida, the court papered over its fundamental schism by issuing a single unsigned ruling to the Florida Supreme Court.
By last Saturday, when the Florida Supreme Court ruled that manual recounts should begin "immediately", the US Supreme Court divided 5-4 on whether to hear the appeal at all and on halting the recounts. The ruling late on Tuesday not only maintained that split but left the court bitterly divided on all the key questions it had faced.
The main ruling issued in the name of the court was adopted by a 7-2 majority. It quashed the Florida Supreme Court's order on manual recounts and sent the ruling back to Florida. But the decision did not, in principle, prevent the manual recounts from resuming, although shortage of time in effect rendered this impossible. And it required the electoral authorities in Florida to impose some uniform standard on the counting procedures, which it recognised was a tall order. As the recounts were initially conducted, it said, they presented "constitutional problems".
In this ruling, the court gave the impression it wanted to kill off the recounts but preferred to delegate that decision to the state's highest court, in observance of the principle of "states' rights". If this was the only statement to have come out of the court it might have appeared weak and inconsistent. But aside from this main judgment there were five other accompanying opinions, reflecting the whole gamut of views from Reaganite conservative to Clintonite liberal. The first was written by Chief Justice William Rehnquist and signed by the other two most conservative judges, Antonin Scali and Clarence Thomas.
Chief Justice Rehnquist, whose other claim to a lasting legacy was presiding over the impeachment trial of Bill Clinton, clearly felt the court's ruling was too soft on the Florida court. He said people ought to know how to vote correctly: "Florida ... law cannot reasonably be thought to require the counting of improperly marked ballots." He also took a strictly conservative view of the timetable for contesting an election and of the constitutional separation of powers, giving primacy to the Florida legislature in determining the state's slate of electoral college voters. For all these reasons, he said, the Florida Supreme Court "significantly departed from the statutory framework in place on November 7" and should have its ruling reversed.
The dissenters lambasted the judgment of the other five, the bare majority that they had failed to break. Justice David Souter said he favoured giving the Florida electoral authorities a chance to establish a uniform standard of counting. Ruth Bader-Ginsburg called the obsession with deadlines "misplaced". "In sum," she concluded, "the court's conclusion that a constitutionally adequate recount is impractical is a prophecy the court's own judgment will not allow to be tested. Such an untested prophecy should not decide the presidency of the United States."