Supreme Court Justice Anthony M. Kennedy, a key member of the five-vote majority that decided the Florida election dispute in favor of George W. Bush, told a congressional hearing yesterday that the court intervened because the case posed "constitutional issues of the gravest importance" that the court had a "responsibility" to resolve.
"Sometimes it is easy to enhance your prestige by not exercising your responsibility, but that has not been the tradition of our court," Kennedy told a House Appropriations subcommittee.
Kennedy's remarks, his first public comments on the election case since the court's Dec. 12 decision, came in response to a statement by Rep. Jose E. Serrano (D-N.Y.). Serrano said his mostly black and Latino constituents were "angry, bitter and disenchanted" with the court's decision, and he asked for an explanation.
The exchange showed that debate over the election case still dogs the justices, even as they move on to more ordinary business. Kennedy and Justice Clarence Thomas, who also voted for Bush in the case, had come to the hearing to press for a five-year, $110 million renovation of the Supreme Court building.
Serrano said in an interview that the justices seemed "taken aback" when he told them "you went and broke my heart" by intervening in the election. Serrano said Thomas told him after the meeting that he would be willing to meet with him to discuss the matter further.
Kennedy's remarks also brought into sharper public focus the deep philosophical disagreements that divided the court during the election case.
His suggestion that the court basically had no choice but to hear the case, even at some risk to its political capital, clashed directly with the views of dissenting justices. Justice Stephen G. Breyer, in an opinion joined by Justices Ruth Bader Ginsburg and John Paul Stevens, wrote that the court should have stayed out of a case that was so politically charged. To do otherwise, Breyer wrote, "risk[ed] a self-inflicted wound -- a wound that may harm not just the Court, but the Nation."
"The issues we decide are very difficult ones," said Kennedy, who was also joined in the Bush v. Gore decision by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Antonin Scalia. "Ultimately, the power and the prestige and the respect of the court depends on trust. My colleagues and I want to be the most trusted people in America."
Thomas added: "It is on difficult issues that the court is required to be the court."
"If there was a way, and I speak only for myself, to have avoided getting involved in that difficult decision . . . I would have done it," Thomas said.
Kennedy and Thomas told the subcommittee that the court needs an expensive renovation because its 66-year-old white-columned building on Capitol Hill, one of the most graceful structures in Washington, is crumbling inside.
Kennedy said the justices were "shocked" when experts told them that an overhaul that members of the court originally believed would cost between $7 million and $20 million would actually be much more expensive.
The court's wiring and plumbing are so out of date, Kennedy said, that they threaten to create a "disruptive, and possibly dangerous, system failure." For years, Kennedy said, the court has deferred expensive modernization to the point where it now lacks even an adequate sprinkler system to put out fires.
