Opinion Is Sharply Divided On Ruling's Consequences

The Supreme Court's 5 to 4 decision to effectively make George W. Bush the 43rd president of the United States was historically unique, without precedent in law or politics. But, in the spirit of the times, opinion on the legal and political consequences of the decision, or how it may affect the future of the court, was sharply divided yesterday.

Some saw a disaster for the court's reputation as an impartial arbiter. Some saw a triumph for common sense that got the country out of a potential political and constitutional crisis. Some saw not much of enduring importance for a court that has weathered numerous assaults on its rulings, from upholding slavery to ordering school desegregation, from invalidating New Deal legislation to decreeing that the Constitution protects a right to abortion.

In his dissent, Justice Stephen G. Breyer called the decision in Bush v. Gore "a self-inflicted wound" for the high court. Justice John Paul Stevens predicted that the episode would damage "the nation's confidence in the judge as an impartial guardian of the rule of law."

Liberal legal scholars decried the ruling as a politically motivated power grab unmoored in precedent or the law. Sen. Patrick J. Leahy (Vt.), the ranking Democrat on the Senate Judiciary Committee, said, "The majority has dealt the court a serious blow by taking actions many Americans will consider to be political rather than judicial."

Two of the five justices in the majority yesterday took the unusual step of denying that politics was a factor in their decision. "Don't try to apply the rules of the political world to this institution," Justice Clarence Thomas said in a televised question-and-answer session with high school students. "I have yet to hear any discussion, in nine years, of partisan politics among members of the court."

Soon afterward, Chief Justice William H. Rehnquist appeared in the court's public affairs office, where reporters were watching Thomas's appearance on C-Span. Did the chief justice agree that politics weren't involved in the court's decision-making? "Absolutely," he replied, "absolutely."

The court, in its unsigned per curiam opinion, sought to insulate itself from criticism by portraying itself as an unwilling participant in the national election drama. "None are more conscious of the vital limits on judicial authority than are the members of this court," the opinion said, but added that the need to enter this dispute was "our unsought responsibility" that the court was "forced to confront."

The court's willingness to enter an area no previous court had explored raised the issue of whether it was risking its legitimacy in some broader way. Prof. Lawrence F. Friedman of Stanford Law School, a legal historian, said that those making predictions about this "don't know what they're talking about, they don't have any evidence whatsoever." He added: "My personal suspicion is . . . that Democrats don't like what the court is doing, and Republicans do. . . . This talk about legitimacy is beside the point. The country is split 50-50 politically, and they're probably split 50-50 on this."

Another legal historian, Prof. Howard Gillman of the University of Southern California, agreed: "What the court did was align itself with half the country against the other half. The half it aligned itself against were mad at the court already. The court isn't risking anything institutionally but a worse reputation among people who already don't like it much." So, if Breyer is right about a self-inflicted wound, Gillman said, "it might be a wound that doesn't hurt."

Gillman said practical political consequences might be more tangible. One is the possibility, discussed in legal circles for months, that Rehnquist might retire if Bush is president, and that Bush might then nominate Justice Antonin Scalia to be the new chief.

"I think this [decision] takes a Scalia chief justice-ship off the table," Gillman said. Trying to promote Scalia after he played an active role in the court to ensure Bush's victory, he said, "would make [former president Gerald] Ford's pardon of Nixon look like child's play in terms of accusations about a quid pro quo," or improper deal.

Republican senators declined to discuss that issue yesterday. Sen. Orrin G. Hatch (R-Utah), chairman of the Judiciary Committee, rejected any suggestion that the court's decision was political, saying it would have no effect on future confirmations.

An aide to Senate Democrats who asked not to be identified said any Bush nominee to the court would face "very intense scrutiny" from a 50-50 Senate--scrutiny that would be intensified in the aftermath of Tuesday night's decision.

But Sen. Mike DeWine (R-Ohio), a member of the judiciary panel, said the pressure couldn't get more intense than it already is. "I don't know that you can get much more heightened awareness of the Supreme Court than we already have," he said.

Observers on all sides agreed that Bush v. Gore represented a departure from past Supreme Courts' great reluctance to interfere in purely political issues. A.B. Culvahouse, who was White House counsel in the second Reagan term, noted that even this court has tried hard to remain "above the fray" of politics, noting, for example, the lengths it went to to achieve near-unanimity in affirming the constitutionality of the independent counsel statute in 1988, or in the 1992 Casey decision upholding the Roe v. Wade abortion ruling despite the personal misgivings of some justices.

"Here they're very much in the fray," Culvahouse said, in a way that can "call into question the impartiality of the court. That's got to be painful to the chief justice and other members of the court."

Prof. Cass Sunstein of the University of Chicago saw parallels between Roe v. Wade--the controversial case that found an implicit constitutional right to privacy that itself created the right to have an abortion--and Bush v. Gore. "The court in both cases intervened aggressively without having a constitutional provision that authorizes" the intervention, he said.

He predicted that the legal reasoning behind the majority ruling in Bush v. Gore may not "hold up very well," but that "as a matter of statesmanship [which cleaned up a messy political situation] it may well be vindicated."

Culvahouse predicted that the political and symbolic impact of the decision will depend largely on Bush's success or failure as president. "If he's successful, lots of people may view [the ruling] as a necessary expenditure of the court's institutional capital" to achieve a desirable end. If Bush is not successful, the partisan split on the court may become more memorable.