BUSINESSWEEK ONLINE : DECEMBER 25, 2000 ISSUE
GOVERNMENT

Commentary: Justice Ran Out the Clock


Face it. There were no easy answers to the case of Bush vs. Gore. One side was going to win and the other was going to lose. Whatever the U.S. Supreme Court did was inevitably going to anger millions of Americans.

But does that mean a fair solution was impossible? Or was there a principled compromise that would have struck most people as evenhanded? If you read the High Court's convoluted ruling closely, it appears that a clear majority of the Justices believe that a compromise existed. Had there been more time, it seems, Justices Stephen G. Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O'Connor, David Souter, and John Paul Stevens would have supported a hand count of all the disputed Florida ballots based upon a set of well-defined objective standards.

The appeal of this approach is clear. It would have honored the key principle championed by the Democrats: that every vote deserves to be counted. At the same time, it would have respected the Republican's legitimate concerns that ballots should be treated identically. It would have been, in fact, just the type of solution that so many Americans were hungering for: one that both sides could accept regardless of the outcome.

FALLING INTO THE FRAY. And yet this is not what we're getting. Fearing there wasn't enough time to develop objective hand-recount standards, longtime swing voters Kennedy and O'Connor joined the conservative trio of William H. Rehnquist, Antonin Scalia, and Clarence Thomas to halt the election. Pulling the plug on a moderate compromise, they decided Americans have to accept a tarnished Florida vote count that nobody believes is accurate--and a President who may not have won.

Is this really the best the Supreme Court could do? As members of the nation's highest tribunal, the Justices have a responsibility to live up to the gravity of the moment. At a time when the country had degenerated into venomous partisan warfare, many Americans hoped that the court would have had the vision to come up with something bigger--a Solomonic compromise, based upon common national principles, that would begin to reunite Republicans and Democrats. Instead, the Justices fell into the unruly fray and wrote an opinion that is fractured, narrow, technical, and, on its face, disingenuous. ''It's a strikeout at every level,'' says Burt Neuborne, director of the Brennan Center for Justice at New York University School of Law. ''It hurts the Supreme Court, it hurts the presidency, it hurts democracy.''

The most infuriating aspect of the ruling is the court's insistence that there wasn't enough time for a fair hand recount--even though most Justices seemed to think it was the right thing to do. Declaring that Florida's 25 electors had to be chosen by Dec. 12, the majority argued that a recount could not ''be conducted in compliance with the requirements of equal protection'' in the two hours that remained before the deadline expired. But this reasoning was based on an unduly literal reading of the Constitution. As Justice Ginsburg noted in her dissent, that deadline has no ''ultimate significance.''

And even those Judges who took the Dec. 12 deadline seriously could have advertised their equal protection concerns in a way that would have made meeting the deadline possible. The Supreme Court had plenty of time to watch this drama unfold. Had the Justices genuinely wanted to encourage the creation of an objective standard for reviewing ballots--and had they construed their role in a constructive, problem-solving way--they could have raised this issue in their Dec. 4th opinion.

But they didn't. And now many Americans are left frustrated. The Supreme Court has told us that a hand count with objective standards probably would have been the right way to handle this mess. But the Justices themselves helped to prevent that from happening. That isn't going to sour many Republican victory parties, but it will likely shake up many middle-of-the-road Americans, who were disillusioned with the way both parties acted. Citizens were counting on the Supreme Court to lead the country to the high ground. Instead, the Court dragged us further down.

By Mike France
Associate Editor France writes about legal affairs.

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