Ruling With The Wind?

With the legal ball now in its corner, the United States Supreme Court is poised to cast what could be the definitive votes in the battle for the White House.

If the justices opt for closure - shutting down recounts for good and effectively delivering the election to Republican George W. Bush - they risk losing some credibility with the half of the voters who chose Democrat Al Gore.

Hotline editor-in-chief Craig Crawford predicted Democrats will "go on the attack" if the court delivers the election to Bush.

Well, the atmosphere may be ripe for politicians to do just that. In the latest CBS News poll, 61 percent of respondents thought the courts involved have been "deciding based on politics." Only 30 percent thought they were "interpreting law objectively."

But "forget about Democrats, let's talk about constitutional scholars," said New York Law School professor James Simon.

Author of a book about the inner workings of the current Rehnquist Court, Simon recalled the words of former Chief Justice Charles Evans Hughes, who once said the pro-slavery decision in the 19th century Dred Scott case caused "self-inflicted wounds" to the Supreme Court's credibility.

Simon predicted a "blizzard of articles and books" from legal experts decrying the Court's "interven(tion) in basically a political issue, (because) if history teaches anything it's that the Court shouldn't intervene where it has discretion not to."

Of Monday's oral arguments, CBS News Consultant Jonathan Turley, a constitutional law expert, said, "It's their legitimacy, not just the presidency, that's at stake here." Turley also noted that Chief Justice William Rehnquist - himself one of the leading historians of the Supreme Court, "cares deeply" about its credibility.

Lifetime appointment to the Court is meant to insulate its nine justices from outside political pressures. But in their opinion in Planned Parenthood v. Casey, Justices Sandra Day O'Connor and Anthony Kennedy, often the swing votes in close cases, along with Justice David Souter, upheld abortion rights and acknowledged that they had considered public opinion in their thinking.

Upholding the landmark Roe v. Wade decision that legalized abortion, these three justices described the Court's legitimacy with the public as "a product of substance and perception". They further wrote that "the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the nation."

Donald Grier Stephenson, a government professor at Franklin & Marshall College in Lancaster, Pa. who has written about the Court and presidential elections, said similar respect for the national political consensus can be inferred from how the Court handled the death penalty a generation ago.

In 1972, the Supreme Court imosed a moratorium on capital punishment. A few years later, about two-thirds of states recrafted and reenacted their death penalty statutes so they could withstand constitutional challenges. When the issue returned to the Court in 1976, the justices said, in effect, "We're going to accept it now," according to Stephenson, who added the O'Connor group's opinion in Casey is remarkable for its bald acknowledgement of the public opinion factor.

And Simon points to a third example: Justice Kennedy's concurring opinion in a term limits case U.S. Term Limits v. Thornton, where he suggests Kennedy joined the more liberal justices in the majority out of "a sense of democracy."

Five justices regularly come down on the side of states' rights: Rehnquist, O'Connor, Kennedy, Antonin Scalia and Clarence Thomas. These are the same five who issued the weekend stay that halted the recount prior to Monday's hearing. Opposing the stay were Justices Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.

Simon said although the Court's first decision in Florida's presidential election deadlock last month was unanimous, he will be "shocked" if they issue another 9-0 ruling.

"The fact that both Scalia and Stevens wrote opinions on the stay suggests the lines are pretty clearly drawn." Like Stephenson, he thinks it possible that O'Connor "and/or" Kennedy could join Stevens "on institutional grounds - a sense of judicial restraint, a sense of respect for state's rights."