News Analysis: To Weigh In or Back
Off
By LINDA GREENHOUSE
WASHINGTON,
Dec. 2 — "The
case is submitted," Chief
Justice William H.
Rehnquist said at the end
of the argument on
Friday, a phrase that
means the preliminaries
are over and the work of
producing a decision is
about to begin.
Now what?
The Hippocratic
injunction to "first, do no
harm" applies to judges
as well as to doctors,
even though it is not
engraved along with
"Equal Justice Under
Law" over the Supreme
Court's pediment.
A famous 1947 case
cataloged some of the
countless precedents for
stepping back from the
precipice of
constitutional
decision-making, "the
most important and the most delicate of the court's functions."
Questions of "timeliness and maturity, of concreteness,
definiteness, certainty and of adversity of interests affected"
should first be considered, the court said in that case, Rescue
Army v. Municipal Court of Los Angeles. It counseled against
Supreme Court intervention in "essentially matters of state law"
that are still "unresolved or highly ambiguous" by the time they
reach the court.
Justice Louis D. Brandeis put it more succinctly: "The most
important thing we do is `not doing.' "
Given the fissures on the court that were evident in argument in
the Florida election case, the question now appears to be
whether the justices will turn to any of its avoidance doctrines
as an alternative to a split decision that could make the court
look like a partisan player rather than a neutral arbiter. They are
working through the weekend to decide the case in a matter of
days.
While many pundits, after watching or listening to the argument,
were quick to proclaim that a 5-to-4 decision appeared to be
in the offing, more serious students of the court were not so
sure.
"It's the difference between judges and justices," Dennis J.
Hutchinson, a former law clerk to two justices who now
teaches at the University of Chicago, said in an interview today.
"A judge applies the law and tries to get it right," he said. "A
justice is always acutely conscious of the political context and
consequences of what the Supreme Court does."
At moments of great national need, the court has worked hard
to speak with one voice.
Chief Justice Earl Warren achieved unanimity against substantial
odds in Brown v. Board of Education in 1954 and maintained it
for all the subsequent desegregation cases the court decided
during his tenure.
In Cooper v. Aaron, the 1958 case that forced the integration
of the Little Rock schools, the justices emphasized unanimity by
placing all nine names on the court's opinion.
Chief Justice Warren E. Burger signed the court's 8-to-0
opinion in the Watergate tapes case that brought about the
resignation of President Richard M. Nixon in 1974.
History has judged these decisions to be institutional successes
for the court, in part because of their unanimity.
Other crisis-driven rulings, like the 6-to-3 decision that
invalidated President Harry S. Truman's seizure of the steel
industry in 1952 over dissenters who included two Truman
appointees, are not viewed so favorably by students of the
court.
If an initial try for unanimity on the legal issues in Bush v. Palm Beach County Canvassing Board falls short, the court has several options that could avoid the appearance of taking sides in a dispute that has probably moved beyond the court's power to affect, in any event.
In fact, the very prospect that spending its capital on a decision that will make little difference to the outcome of the election might be the greatest incentive for a divided court to find a way out.
The quickest way out would be what the court calls a DIG, or
"dismiss as improvidently granted," an order removing a case
from the docket for a variety of reasons, none of which have to
be specified. Once or twice a term, the justices DIG a case
after the argument or some other development has revealed that
the case never was or is no longer what it appeared to be when
the court undertook to decide it.
That is certainly a plausible view of the current status of the
Florida case; in the eight days since the court granted Gov.
George W. Bush's appeal from the Florida Supreme Court, not
only has he been certified the winner of Florida's 25 electoral
votes, but the heart of the dispute has shifted to another phase
of litigation in the state courts that is proceeding this weekend
even as the justices are working on this case.
But a simple DIG, which is usually unaccompanied by an
opinion, could be a bitter pill, given that the court granted the
Bush appeal after being vigorously advised by lawyers for Vice
President Al Gore that there was nothing in the case to justify
the Supreme Court intervention at this point. So dismissing the
case would seem to call for some fuller explanation beyond an
implied "never mind."
More appealing, perhaps, would be a very short opinion, of a few paragraphs or pages, incorporating various justices' reasons for not addressing the merits of the case.
Some justices might conclude, as Justice Stephen G. Breyer
indicated at the argument, that the case has been overtaken by
events. Others might believe, as Justice Sandra Day O'Connor
suggested, that whatever statutory or constitutional issues might
be presented by a dispute over the legitimacy of Florida's
electors, that dispute is not yet ripe for adjudication. Others
might agree with Justice Ruth Bader Ginsburg that however
problematic the Florida Supreme Court decision might be, the
court should rely on its tradition of giving state courts the benefit
of the doubt.
All those separate reasons for not acting could be appended to
a brief opinion announcing the court's disposition of the case.
That is sometimes the way the court acts when speed is of the
essence.
In the Pentagon Papers case, decided four days after it was
argued in June 1971, a three-paragraph unsigned opinion
announced the majority's view that the government could not
block the papers' publication. While all nine justices then added
their separate opinions, six concurring and three in dissent, the
court as a whole had spoken.
For judges, the Hippocratic oath means not only "do no harm"
to the law or to the country, but to the court itself.
nytimes.com |
