Hornets' Nest

Brian Hindt of Atlanta, left, a supporter of Texas Gov. George W. Bush supporter, argues with James Cooke, a supporter of Vice President Al Gore outside the U.S. Supreme Court Monday, Dec. 11, 2000, in Washington.
The United States Supreme Court wrote Al Gore's legal obituary Tuesday night. The five most conservative Justices reversed the Florida court's recount ruling, effectively ending the vice president's contest lawsuit, and all but precluding any opportunity for additional ballot reviews which might have given Gore a lead over George W. Bush in the Sunshine State.

The vice president's lawyers no doubt have been poring over the 65-page ruling. But if they are candid with their client they will inform him that he's out of legal ammunition; with this ruling staring them in the face, they cannot honestly tell Gore that there is a single lawsuit out there with even a remote chance of generating even a single additional vote, let alone a few hundred. Sometimes there just aren't any more appeals to make. And even though the vice president isn't a lawyer, he's probably getting the message.

Technically, the High Court reversed and remanded the case back to the Florida Supreme Court, but, speaking euphemistically, the ruling is 99 percent reversal and one percent remand. A 7-2 majority of the Justices held that the recount procedure put into place by the Florida Supreme Court created "constitutional problems." The most conservative Justices - Chief Justice William Rehnquist, Justice Clarence Thomas, and Justice Antonin Scalia - also found fault with the scope of the Florida Supreme Court's ruling.

But the real fight here was over what to do about those ballot standards and what, if anything, to do about the recount. On those two issues, the Court was fiercely, miserably, monumentally divided. By the narrowest of majorities - again, those five conservative Justices banded together to carry the day - the Court decided to shut down the Florida case even though it conceivably could have authorized a "fix," which might have allowed recounts under valid standards. The majority ruled that, since there was no constitutional recount procedure in place in Florida - and since none would be likely before Dec. 18 - no such recounts would be authorized by the Court.

The majority expressly rejected a deal proposed by Justice Breyer, who apparently was trying to broker a ruling which would have permitted the Florida Supreme Court to take another stab at authorizing recounts prior to the Dec. 18 electors deadline. The Court said such a deal would have improperly violated Florida law, an ironic position, of course, since the Florida Supreme Court had done everything it could to interpret that same Florida law in a way to encourage recounts.

The rejection of Justice Breyer's deal clearly cut the Court in two.

A long time ago I learned that you can best tell what the majority has done in a case by reading what the dissenters say. And read what the dissenters had to say - not about the constitutional problems with the recount - but about the majority's unwillingness to find a way to solve the problem: "By halting the manual recount," Jusice Breyer wrote, "and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm."

Justice David Souter also chimed in: "To recount these (ballot) manually would be a tall order, but before this Court stayed the effort to do that the courts of Florida were ready to do their best to get that job done. There is no justification for denying the State the opportunity to try to count all disputed ballots now."

Finally, Justice Ruth Bader Ginsburg noted: "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."

About the so-called remand: It's true that the Court sent the case back to Florida "for further proceedings not inconsistent" with the Court's ruling. But the High Court gave its state counterpart no instructions, no authority and no chance, really, to generate new, constitutional standards for determining when a ballot is a vote under Florida law. And while it is theoretically possible to read the majority's opinion to suggest that a recount is conceivable - if Justice Breyer's deal couldn't work, maybe another might - can you imagine any scenario in which those Florida Supreme Court justices would want to venture into the hornets' nest in Washington for a third time?

I'll leave it to the political analysts to predict how this ruling will affect the vice president now and in the future. But I will take a stab at predicting how this ruling will affect the Court's reputation and the nature of the judiciary in general. It won't help. Instead of speaking in one clear voice, instead of demanding some level of consensus and compromise, instead of coming together, the Court stayed apart. In the end, then, people will remember this ruling as one in which the Justices failed to take advantage of a unique opportunity to put their collective genius together and offer America a solution it could have and would have embraced.

They will remember this ruling as one which ratified dubious decisions made by an overtly partisan secretary of state. They will remember this ruling as one which left on the table - literally and figuratively - thousands of ballots which never were reviewed by human hands and eyes. Perhaps most importantly, they likely will look upon this decision as one which cemented in place the dismal notion that we are a nation of laws, but that the men and women in charge determine what the law is.

As dissenting Justice John Paul Stevens wrote Tuesday night: "Time will one day heal the wound to that confidence 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 perfecty clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."