It's pretty evident that the Supreme Court by a 5-4 majority has narrowly reversed the Florida Supreme Court on equal protection grounds, and left no practical avenue for the Florida Supreme Court, on remand, to create a standard upon which the inspection of undervotes (as the "end game" of a Florida election contest) can continue without violating the majority's interpretation of the constitution. In light of this decision, Gore has no practical ability to win this election anymore. Therefore, he will likely withdraw his effort to continue the legal battle tomorrow. I do not think he will do so in a way that the Bush supporters will like (he will not bow before King George), as there are principles which he and his supporters feel very strongly about here, eloquently identified in the four dissenting opinions, that deserve to be articulated even as he concedes the election, that he will no doubt invoke. But he will no doubt also call for the country to rally in support of the new President and at the same time call on the new President to reach across party lines and partisan rhetoric to unite the Country, if nothing else in recognition of the closeness of the election. Whether Bush does that or not remains to be seen. But, for you Bush fans, it's time to breath a sigh of relief, a 5-4 majority has done what you wanted it to do.
Well, not quite what Bush wanted. Only 3 of the 5 judges in the majority (Rehnquist, Scalia and Thomas) supported the main thrust of the Bush position -- the other 2 majority votes (O'Connor and Kennedy) very narrowly ruled that the record contained too many indications of different standards being applied in different counties in a single statewide count (as between Broward and Palm Beach, and even within Dade) to allow the recount to continue as ordered by the FSC. In that view, there were 7 justices in agreement (regarding the need for a more uniform standard). The majority then concluded that there was insufficient time for the FSC to craft a standard that could pass US Constitutional muster and still allow Florida to make use of the Title 3 Section 5 (US Code) "safe harbor" for Presidential electors certified under pre-existing state procedures 6 days before the electors meet to vote (12/18). The two dissenting justices who agreed that a valid equal protection claim had been raised (Souter and Breyer) vehemently disagreed that the matter could not be sent back to Florida to complete a ballot inspection as part of the election contest under a single uniform standard established by the state judiciary in time to certify electors and keep the US Supreme Court out of the business of de facto choosing the winner. Though O'Connor and Kennedy did not state in the majority unsigned opinion their disagreement with Rehnquist's concurring opinion, the fact that they did not join it indicates that they felt it unnecessarily went overboard in finding a federal issue and trying to second guess the FSC's interpretation of Florida state law, but through the use of the equal protection concern, they ended any ability to continue a legal contest over this election and handed Bush his victory. But as decisions go, the majority opinion was weak and at best a back door victory, far from the decisive result Bush wanted.
The real interesting part of this decision are the four (count 'em, four) dissenting opinions, and the concurrence. The latter clearly shows Rehnquist, Scalia and Thomas trying to hand a decisive legal victory to Bush. Unfortunately, they could only muster their 3 votes. For those who take a conservative view of the role of federal courts, the concurring opinion by the "conservative wing" is, in candor, a disturbing opinion and it's clear that O'Connor and Kennedy were uncomfortable with its extremism and judicial activism.
The dissenting opinions are even more striking -- they carry much more weight and judicial restraint then the majority opinions, and although Stevens' dissent has been getting the most immediate media attention for its final paragraph, Breyer's dissent makes by far the most compelling argument against this decision, and is grounded on a much closer and more intellectually honest reading of the very constitutional provisions and Federal laws on which the majority's opinion was seemingly grounded. Too much to get into now, though. Maybe tomorrow.
Congrats to all you Bush-ites. It should be interesting to see if he can unscramble the eggs. I for one have my doubts that he can, or even that he really wants to.
MST |
