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In handing the election to Bush, did the Supreme Court follow the law--or partisan politics?

The day after the Supreme Court handed down one of the most momentous decisions in the history of the nation, one in which the Court by a 5-to-4 split ensured that George W. Bush would be the next President, one of the Justices found himself in a quiet room on the Court's second floor, fielding questions from a group of high school students.

The nine Justices rarely explain their rulings outside of their written opinions, but Justice Clarence Thomas had agreed to the session months earlier, certainly not anticipating it would come on the heels of a ruling that rocked the nation. One student asked him how much of a role a Justice's political affiliation has on the decisions the Court hands down.

"Zero," Thomas replied. "I plead with you that whatever you do, don't try to apply the rules of the political world to this institution."

But on this day, the Court was being assailed widely for behaving in what seemed a transparently political manner. The five Justices in the majority had for the first time ever essentially picked the nation's President. Many critics, including some of the Justices in the minority, were suggesting the majority had acted politically and damaged the Court's reputation.

The Court's action, wrote Justice John Paul Stevens, one of the dissenters, "can only lend credence to the most cynical appraisal of the work of judges throughout the land."

Justice Stephen Breyer, another dissenter, wrote: "Above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself. That confidence is a public treasure."


The controversy began in Florida, where according to the state's official results, Vice President Al Gore seemed to have narrowly lost the state and its 25 electoral votes. His lawyers sued the state, demanding a recount in several counties. They argued that many people who voted for Gore might not have had their votes properly counted because of faulty voting machines. The Florida Supreme Court eventually agreed, ordering the state to recount all of the "undervotes," those ballots in which a voter chose some candidates but the machine did not record a vote for President.

Bush appealed that decision to the U.S. Supreme Court, arguing that the recount violated the Constitution's guarantee of equal protection under the Fourteenth Amendment. The vote counters were judging punch-card ballots by different standards in different counties--in some places, counting only ballots with holes punched all the way through, in others counting ballots that had only been partly punched. The lack of a statewide standard meant votes were being treated differently from place to place. "Equal protection" doesn't mean that the laws have to apply equally to everyone all the time, but if they do apply differently to different people, there must be some rational basis for it.

Gore's lawyers argued that the recount rules were set by Florida law, and the different counting standards had less impact on the election than the varying types of voting machines and ballots used in different counties. The larger issue, they contended, was a fundamental democratic right--that all legal votes deserve to be counted.

A majority of the Justices--which included Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Sandra Day O'Connor--sided with Bush. The four dissenting Justices--Stevens, Breyer, David H. Souter, and Ruth Bader Ginsburg--all believed the recount should continue.


Did the decision blur the line between law and politics? The Supreme Court has a hard-won reputation as the least political branch of government. Justices are appointed for life, a tenure that shields them from the day-to-day politics faced by elected officials. Their decisions are supposed to be based on the interpretation of the Constitution and federal law.

But on some level, the Court is always political. First of all, the Justices are chosen in a decidedly political process. Each is nominated by a President of one party or the other and must be confirmed by the Senate, usually after a political debate. In this decision, the five Justices who helped Bush win the election were nominated by Republican Presidents. Of the four dissenters, two were nominated by Republicans and two by Democrats.


Also, while the issues before the Court are legal ones, they invariably touch on the kind of social issues that get argued in the political arena, like abortion and affirmative-action. Some defenders of the Court's majority argue that nothing could have been more political than the celebrated 1954 decision ordering states to desegregate their public schools.

In the case of Bush v. Gore, says Richard J. Pierce Jr. of George Washington University Law School, the Justices relied on the law. "I assume every judge always tries to do the right thing, to act in a judgelike manner, to be fair and impartial," he says. "They struggle within themselves, with recognizing the political implications of cases, but doing their best to put that knowledge aside."

But those who believe that the decision reflected partisan politics point to the record of the majority. All five of those Justices have generally advocated "judicial restraint"--a reluctance to overrule decisions made by Congress or the states. All five have also been strong supporters of federalism--the tendency to let states make and interpret their own laws without interference from Washington. Based on those patterns, most Court watchers thought the Court would let the Florida ruling stand.

"There is really very little way to reconcile this opinion other than that they wanted Bush to win," says Suzanna Sherry, a professor at Vanderbilt Law School.

The election may finally have ended, but the debate over the Court's action will certainly continue. With a couple of Justices well into potential retirement age, President Bush may have the opportunity to nominate new ones. Those nominees must be confirmed by the Senate--and that process could produce political fireworks.

FOCUS: Gore v. Bush Shows Deep Divisions in the Nation's Highest Court


To help students understand the Supreme Court ruling that ensured President-elect George W. Bush's victory.

Discussion Questions:

* In his dissent, Justice John Paul Stevens said the Court's vote siding with George W. Bush would cause the nation to lose confidence in the judge as an impartial guardian of the law. Do you agree?

* How would you define the phrase "impartial guardian of the law"?

* Vice President Gore said that while he "strongly" disagreed with the Court's ruling, he respected it. Why do you think he said this?


Role-play: Select nine students to play Supreme Court Justices. Have them debate and vote on the following questions:

The Issue: A state law requires that electors be chosen by a certain date, but that deadline will have passed if recounts of contested ballots are allowed to continue.

The Questions: Is the law setting the deadline paramount? Should the deadline be disregarded in order to count the contested ballots? Should the Court set uniform rules for recounts of ballots?

Research/Critical Thinking: Note the sidebar on equal protection, on page 13. Then look up the last line of Article I of the 14th Amendment. What does "equal protection of the laws" mean? Note that the majority ruling claimed some Floridians were not receiving equal protection because the standards for recounting ballots differed from place to place. Ask students whether they agree with this argument. Then have them write arguments that (1) support the majority view on equal protection and (2) support Gore's argument that recounts had to be done to protect the rights of people whose votes had been discarded.

Have students discuss why they believe Supreme Court Justices, all highly educated legal scholars, can study the same case and come to different conclusions. Do differing political allegiances account for the differing opinions, as critics of the majority say? Or may honest people differ over the facts in a case? What difference, if any, does it make that the ruling was 5-4 rather than unanimous or, say, 6-3?

NEIL A. LEWIS is a Washington correspondent for The New York Times.
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Author:Lewis, Neil A.
Publication:New York Times Upfront
Date:Jan 15, 2001
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