The Right Arena.

In his short speech on November 26, hours after Florida certified him the winner of its electoral votes, George W. Bush quoted a line from Thomas Jefferson's first inaugural. Jefferson himself had been elected in a bitter and complex contest. Because electors did not then vote for a ticket but cast two independent votes, he and his running mate, Aaron Burr, happened to tie. The losing Federalists, thinking Burr was the better man, hoped to put him over the top. Since the House of Representatives was also deadlocked (eight states for Jefferson, six for Burr, and two evenly split), over 30 ballots were taken, without any movement. Finally James Bayard, the lone Federalist congressman from Delaware, took the advice of Alexander Hamilton and abstained, giving the election to Jefferson. For years afterward, Bayard claimed that Jefferson had agreed to certain Federalist conditions (keeping the navy, not dismantling the courts). Jefferson denied it, yet he did everything (at least initially) that Bayard and the Federalists wanted.

A political contest was settled, in other words, by politicians. Sometimes it doesn't look pretty. In 1824 John Quincy Adams, finishing second in a four-man race, made a deal with Henry Clay, who had finished last: Clay backed Adams when the election went to the House, and Adams made Clay his secretary of state. The deal was perfectly legal, and Clay was in fact a good diplomat. But Andrew Jackson, who had finished first, spent Adams's term howling over the supposedly corrupt bargain. Sometimes the politicking is in fact not pretty. In the election of 1876, the massive fraud engaged in by supporters of both Samuel Tilden and Rutherford B. Hayes led to a 15-member special commission to adjudicate disputed electoral votes. The real deal was done in a back room, where the Republicans promised to end Reconstruction, if the Democrats would consent to roll over. The deed was done, and southern blacks were put on the road to disfranchisement.

No one thought of turning these elections over to the courts. That has been reserved for our own day. Both sides have taken a legal route, Bush rolling the dice on the U.S. Supreme Court, Al Gore rolling them (with less risk) on the Florida supreme court. Phalanxes of lawyers have argued the contending cases. David Boies, fresh from taking on Microsoft, has decided to litigate the future of the United States.

There are mechanisms for resolving even such tangles as the election of 2000. County officials first began the hand recounts; Florida has a legislature, and a governor, who can intervene in the process. At the end of it stand the U.S. House and Senate. When the people's choice produces a tie, or a rugby scrum, the politicians have the primary constitutional responsibility for extricating themselves, and us, from it. If we don't like their handiwork, we have another crack at them down the road. Americans increasingly expect courts to write regulations and administer the details of their lives (the courts themselves have not been shy about fostering this expectation). Popular TV shows like Judge Judy and legal melodramas like the O.J. trial reflect this understanding. Critics of judicial activism have always complained that the country was being led away from self-government. If courts pick the president, what remains?