The Supreme Court stepped into the disputed presidential election in dramatic fashion yesterday, conducting a civil but intense oral argument in which the nine justices seemed no less divided than the nation itself over how to settle the struggle for Florida's 25 electoral votes.
In a session put on the court calendar just last week, the justices tackled the question of whether the Supreme Court of Florida violated the U.S. Constitution and federal law when it gave Florida counties an extended deadline for carrying out manual recounts of presidential ballots.
The court's more liberal justices repeatedly suggested through their interrogation of Theodore B. Olson, the lawyer for George W. Bush, that there may be no basis for the nation's highest court to second-guess what the Florida Supreme Court said was an effort to interpret conflicting and ambiguous provisions of state election law.
Florida's seven justices "may have been wrong; we might have interpreted it differently, but we are not the arbiters--they are," Justice Ruth Bader Ginsburg, who was appointed to the bench by President Clinton, told Olson.
For their part, the court's conservatives peppered Gore attorney Laurence H. Tribe with questions and remarks implying that the Florida court had exceeded its authority under the U.S. Constitution and federal law, and that it would be up to this court to set matters right.
At different times, Chief Justice William H. Rehnquist and Justice Antonin Scalia told Tribe flatly that they did not agree with his arguments.
As is often the case, Justices Sandra Day O'Connor and Anthony Kennedy appeared to stake out the middle ground. They suggested in their questioning of Tribe that the Florida court went too far in creating a new deadline. But in quizzing Olson, the justices also wondered whether the right place to solve any problem created by that was in Congress, not the court.
Watching the proceedings in Bush v. Palm Beach County Canvassing Board was an overflow audience that included leaders of Congress, Vice President Gore's four children and Caroline Kennedy Schlossberg. The 90-minute argument--longer than the usual hour in recognition of the importance of the case--centered on two pieces of constitutional and statutory text that only rarely before have been the subject of Supreme Court litigation.
Bush was granted a hearing based on twin contentions: that the Florida Supreme Court's decision violated Article II, Section 1 of the Constitution, which grants state legislatures exclusive power to regulate elections for members of the electoral college, and, second, that the court violated an 1887 law that directs states to settle presidential election disputes according to rules in place before Election Day.
Bush argues that the Florida court's decision was tantamount to a new law, and thus both usurped the Legislature's power under Article II, Section 1, and belatedly changed the rules for settling the controversy over who won the election, contrary to the 1887 law.
The Florida court's action, Olson told the court, is responsible for "the controversy, conflict and chaos that we submit exists today in Florida."
In their questioning of Olson, Justices O'Connor and Kennedy evinced some sympathy for Gore's view that the 1887 law was not meant to be enforceable by the federal courts, but rather to set criteria according to which Congress might determine the slates of electors to recognize when it counts electoral votes.
"I would have thought it was a section designed in the case of some election contest ends up before the Congress, a factor that the Congress can look at in resolving such a dispute," O'Connor noted. "I just don't quite understand how it would be independently enforceable."
In writing the law, Kennedy added, Congress was telling states that if it picked electors according to rules set up ahead of time, their choice would be respected. "They said, 'If you run a clean shop down there, we'll give you a bonus. And if you don't, well, you take your chances with everybody else.' "
They were joined in that view by Justice David H. Souter. Souter suggested to Olson that, even if Olson were right that the Florida court had set in motion a process that could lead to the votes of the wrong electors being sent to Congress, the proper remedy would be for Congress to refuse the votes, as provided for under a separate section of the same law.
"Why should the court . . . be interfering in what seems to be a very carefully thought out scheme for determining what happens if you're right?" Souter asked.
However, when Tribe rose to present Gore's side of the case, O'Connor and Kennedy took the opposite tack. "[P]erhaps the Florida court has to be aware of the consequences to the state of changing the rules," O'Connor told Tribe.
A former Arizona state legislator, O'Connor also seemed troubled by the Florida court's revision of a deadline that, however unwise or unclear, had been enacted by the Legislature.
"Who would have thought that the Legislature was leaving open the date for change by the court?" she asked.
Tribe argued that the Florida court's effort to reconcile the state election law's provisions allowing manual recounts and imposing a deadline for certification was "an entirely reasonable construction of an existing enactment," not, as O'Connor phrased it, a "dramatic" change in the law.
In any case, he said, the 1887 law is "all carrot and no stick," meaning that even if the Florida court went too far, there is nothing for the Supreme Court to do.
Rehnquist and Scalia bombarded Tribe with questions revolving around one of the court's few precedents on the power of state legislatures to name electors--an 1892 case, McPherson v. Blacker.
In that case, a group of would-be presidential electors from Michigan challenged a new state law that changed the method of picking electors.
The 1892 court held that the new plan was constitutional, because the Constitution gives state legislatures full authority to dictate the method of selecting electors--a power that the court suggested cannot even be "modified" by state constitutions.
And the court held that there could be no voting rights or equal protection violation, as the plaintiffs claimed. Given the legislature's broad authority, the court said, "there is no color for the contention that" the Constitution establishes an individual "right to vote for presidential electors."
Rehnquist and Scalia pressed the point that, insofar as the Florida court had based its decision to allow manual recounts on the state Constitution's guarantee of a right to vote, then, in Rehnquist's words, "Blacker is a strong argument they can't do that."
He apparently meant that Blacker stands for the proposition that state constitutions cannot alter the U.S. Constitution's delegation of power to choose electors to the state legislatures.
Scalia added: "In fact there is no right of suffrage under Article II."
The Florida court's opinion includes references to the "preeminent" right of suffrage granted by the Florida Constitution, and suggests that the Legislature's election laws "are valid only if they impose no 'unreasonable or unnecessary' restraints on the right of suffrage."
But Justice John Paul Stevens, also considered a relative liberal on the court, objected to Rehnquist and Scalia's line of reasoning. Stevens noted that the Florida court's reference to a state constitutional right to vote came in the context of citations to other authorities, such as federal and state case law.
In Supreme Court cases involving the fate of the presidency, such as the 1974 case ordering President Nixon to turn over his secret tapes or the 1997 case permitting Paula Jones to sue President Clinton, the justices have sought to fortify the perceived legitimacy of their holdings by ruling unanimously.
Yet yesterday's hearing ended with no clear indication of how unanimity might be achieved in this case, which, for the country, may be more politically polarizing than anything else the court has dealt with.
Given the potential risks to the court's own public standing of a sharply divided ruling, the justices might find a way to dispose of the matter without issuing an opinion on the merits.
But yesterday only one justice, Stephen Breyer, another Clinton appointee, was willing to suggest that, given the uncertainties surrounding Gore's pending contest of the election in Florida, the court might not want to decide the case.
In past cases, Breyer noted, the court has "said a claim is not ripe if it rests upon contingent future events that may not occur as anticipated or indeed may not occur at all. And so what I wonder, is this in this realm of speculation as to whether or not it will or will not make a difference . . . to the outcome of the election?"
One of those intensely concerned about the outcome--Gore--kept to himself yesterday. After several days of intense lobbying on his own behalf--through television interviews, photo opportunities and personal calls--Gore listened to televised audiotapes of the court proceedings at his residence at the Naval Observatory.
Bush held transition meetings at his ranch with his running mate, Richard B. Cheney, and his designated White House chief of staff, Andrew H. Card Jr. Bush did not watch the Supreme Court arguments but talked to Olson while riding back to the governor's mansion this afternoon. Aides said he thanked Olson for making his case and commended the legal team for its work.
Staff writers Ceci Connolly and Mike Allen contributed to this report.