- The Washington Times - Thursday, December 14, 2000

The Supreme Court has weathered its critics and cries for impeachment since the founding of the Republic, and the majority in the Bush v. Gore ruling already is girding against cries of hypocrisy and partisanship.
The case of the 2000 presidential election, by which the Rehnquist court always will be measured, differs from earlier hot-button issues because the deepest digs came from two justices, John Paul Stevens and Ruth Bader Ginsburg.
"Instead of respecting the state high court's province to say what the state's Election Code means, the chief justice maintains that Florida's Supreme Court has veered so far from the ordinary practice of judicial review that what it did cannot properly be called judging," said Justice Ginsburg.
There's also incoming flak from Congress, political activists, talk-show hosts and sign makers everywhere.
"The Supreme Court threatens its own credibility as well as the principle that elections should be determined by the voters," said Ralph G. Neas, president of People for the American Way, who worked for Mr. Gore's election.
Historically, this is a court that settled an argument with President John Adams simply by declaring its own authority. It has flourished despite attacks over upholding slavery, forbidding prayer in the schools, opening every state to abortion, upholding laws against private sodomy by homosexuals and forcing disclosure of tapes that led President Nixon to resign his office.
"They never did impeach Earl Warren, did they?" one Supreme Court watcher said yesterday.
After meeting his self-imposed deadline of deciding the battle by Tuesday midnight, Chief Justice William H. Rehnquist's first priorities were defending the credibility of the majority ruling and arguing the decision reinforced federalism instead of diminishing it.
"This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures," the chief justice wrote in a concurring opinion that essentially said the Florida Supreme Court unconstitutionally encroached on legislative powers.
Justices Antonin Scalia and Clarence Thomas joined that opinion, which, like all four dissenting opinions, is explanatory and not a legal precedent in other cases.
The Center for Local Sovereignty, a Washington-based interest group that opposed any hearing by the high court, was pleasantly surprised by its affirmation of a state legislature's latitude in deciding to appoint electors.
"There is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated," the court said, adopting the words of a U.S. Senate report originally quoted in the 1892 McPherson vs. Blacker Supreme Court decision.
Yesterday, Justice Thomas sought to minimize any role of politics in the outcome or the appearance that the Bush v. Gore case engendered bitterness.
"I can still say, after the events of this week and all the turmoil, that in nine-plus years here, I've yet to hear the first unkind word," he said at an annual C-SPAN forum for high school students, broadcast from a Supreme Court conference room.
The unusual reach of the decision was as striking to a longtime Rehnquist fan, appellate lawyer Charles J. Cooper, as it was to dissenters who berated it in vivid terms.
"They called it absurd. I have no doubt that is unprecedented," said Mr. Cooper. "That debate within the opinions is quite seismic and quite meaningful because the concurring trio has argued that any interpretation of a state's legislative provisions for the appointment of presidential electors is a federal question."
Justice Ginsburg suggested the trio showed a somewhat flexible devotion to federalism principles while Justice Stevens said they delivered a damaging blow to public trust in the courts.
"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," said Justice Stevens.
"It is our settled practice to accept the opinions of the highest courts of the states as providing the final answers," said Justice Stevens.
In the post-mortem tumult there seemed little interest in how the Florida Supreme Court might exercise its now-limited discretion to close the case, which could include ordering the votes to be guarded and counted anyway, but not included in the election. A Florida newspaper quickly requested access to the ballots so it could decide which ones to count.
"There are a number of possibilities of what could happen," said Craig Waters, a lawyer who is court spokesman. "We have been hopeful that this is the light at the end of the tunnel, but at many times in the past we've found that the light we see is only another train coming at us."
Many of those who joined yesterday's uproar focused on the one-vote margin to reverse the lower court, overlooking the 7-2 vote that ruled the Florida vote setup violated the Equal Protection Clause of the 14th Amendment.
"You don't have to take the words of Democrats or the words of citizens to even question that. Look at even the words of the four members that were in the dissent, who had some very strong words for the majority opinion," said Joe Andrew, chairman of the Democratic National Committee, in an Internet interview with ABC News reporter Sam Donaldson.
Sen. Olympia J. Snowe, Maine Republican, took an opposing tack that emphasized the 7-2 vote on the violation above the 5-4 decision on the remedy.
"What was very significant about the decision is that seven of the Supreme Court justices recognized that there were some serious constitutional issues with respect to the counting standards and Equal Protection Clause," she said.
Former White House Counsel C. Boyden Gray dismissed those who focused on the narrowness of the vote. "On the main issue, it was 7-2. I would take a 7-2 decision anytime. I don't think it is divisive at all," said Mr. Gray, a key aide to the governor's father.
Even in recent times, not all the controversial rulings have been decided by one vote. Roe vs. Wade, the 1973 case that prevented states from outlawing abortion, was 7-2 and Clinton v. Jones was 9-0, allowing a private lawsuit for misconduct to continue while the defendant was president.
Researcher Robert E. Riggs wrote in the Hofstra Law Review that criticism was a constant companion of the court from the 19th century into the early decades of the 20th century "when 5-4 decisions were few and unanimity was the rule."
In the early years of the court, the fact that a decision was unanimous didn't stop critics, wrote Mr. Riggs, a former law professor. They just said the decision was illegitimate, and seized on one-vote margins when they became the norm during Franklin Delano Roosevelt's tenure.
As it was in the Depression, so it was yesterday in the streets of Washington and Tallahassee.
"There's something about the winner being crowned by the Supreme Court behind the curtain rather than the voters determining," said the Rev. Jesse Jackson, who flew to Tallahassee to lead a street demonstration against "stolen elections."
Approval for the ruling came from Jay Sekulow, lawyer for 63 Florida lawyers who filed friend-of-the-court briefs in both U.S. Supreme Court election cases. "The U.S. Supreme Court boldly embraced the issue and did not shy away from its duty to ensure that the Constitution and the rule of law were protected," said Mr. Sekulow, of the American Center for Law and Justice.

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