Politics and the Supreme Court

"You hear a lot that a Justice's politics disappear when he puts on the robe, but I just don't think that's true in reality," says Philip A. Lacovara, a former Watergate prosecutor and U.S. deputy solicitor general and current Supreme Court public-radio commentator. "It's not a mechanical process. That's why we have human beings on the bench. And politics and policy still matter along with the law." Here are two possible outcomes of Monday's Florida Supreme Court hearings, and their rationales:

The court rules that the hand counts can go on, and that Harris improperly ruled them out. It sets its own deadline for their completion and certification, somewhere after Miami-Dade and before December 12.

This is the one Gore is looking for: a reading sympathetic to the Democrats and their hanging chads, and to the idea that a manual count, though lengthy, is more accurate than a machine one. Remember, this is a court with a reputation for activism, and they're also Democrats.

"They could find that she has the discretion, but she abused it here. Because of the circumstances surrounding of this vote — the voter confusion, the extraordinary closeness of the election, or whatever — it was reasonable for her to use that discretion to accept the hand counts in her tally."

The court rules that Florida law, however muddily, grants Harris ultimate discretion to include or exclude late manual recounts from the certified tally. End of story.

This one's for Bush: a strict reading of the statute and a practical end to the ongoing hand counts threatening to tip the state — and the election — to Gore.

"This is the politically savvy course," says Lacovara. "They know that this decision will not be overlooked by history. They know that if they rule against Harris and Gore wins, they'll go down as seven Democrats who took an activist stance to deliver the state — and the election — to Al Gore. As judges, they can safely say that whatever intuitive problems the statute may pose this year are 'not our problem'" and be beyond reproach politically.

Politics is also why Lacovara figures the Justices will be keeping a very close eye on the hand-count returns as they come to a decision. "If they look at the news and see that Gore may not be picking up enough votes to win, they might be a lot more comfortable with ruling in his favor," he says. "They could say that the judicial branch is the last resort of justice, and that the integrity of the process requires that the hand counts be included in the certified tally."

And if Bush still won, they'd be off the hook. Leaving the rest of us on it well into December.