Laurence Tribe, attorney for Al Gore, talks to reporters after the hearing
Reading the minds of the nine Supreme Court Justices is always a tricky business, even if you get to hear their voices. But first impressions from the Court's 90 minutes say this thing — guess what? — is gonna be close. And as long as the Justices stick to the narrow issue of the jurisdiction of the Florida Supreme Court, close is all Gore will need.
Court? What court?
Say the Supremes rule for Bush, 5-4. A tight majority on the conservative Court that made such a handy bogeyman for Gore during the campaign sure wouldn't stop him now. The veep's response to a loss would be much like Bush's would be, except that Gore would likely do it personally: Downplay, downplay, downplay.
Gore wouldn't lob any Jim Baker–style grenades at the partisanship of the Court — the media would kill him for it. He'll just soberly, and correctly, insist that the Court ruled on his protest but not his contest (which lives on in the Florida courts at least through Saturday). His noble, selfless quest to "count all the votes" must continue for the good of democracy.
And Gore's base, glimpsing the names of Antonin Scalia and Clarence Thomas on a pro-Bush majority decision, will know exactly what he means.
Can they all just get along?
But the Court is also likely to struggle for some sort of unified voice in a case this important. The easiest way to do that would probably be to wash their hands of the case. If one end of the Court's philosophical spectrum can't win over the other, or at least the Kennedy-O'Connor middle, they may decide that any split decision — and the resultant politicization of America's highest arbiters — would be the worst outcome of all.
A no-decision is a mild rebuke of Bush's argument against hand counts. A strong ruling in Gore's favor, having a similar effect of leaving Florida to its own devices, would be a slightly stronger one. But either would only require the Bush camp to continue the fight in the Florida courts, which it's doing anyway. Both of those would puff Gore's chest out a bit, but not change much once the dust settled.
The only thing Gore has to fear is what looks like the longest shot: A strong ruling for George W. Bush.
The voice of the gods
When the Supreme Court speaks, people listen. And if the decision comes down for Bush by any score, Republicans will be baying with renewed ardor for Gore's head. A 5-4 decision, and it's pretty much just another partisan shouting match, albeit with both sides striving for the appropriate hushed tones when speaking of the Court itself. Make it 6-3 or 7-2 or more, though, and the buzzword on cable-news correspondents' lips will be "supermajority." And then it starts to echo.
A severe ruling for Bush doesn't invalidate Gore's legal situation or strategy, it just forces him to refile his contest under different terms. But it could invalidate Gore himself. What filters down to the mostly-just-disgusted-by-now public will be that Bush went to the Supreme Court to stop manual recounts, and he won. And Gore, though he didn't go looking for a fight, lost. Big time.
The polls that say Gore should concede will shoot up. December 12 will start to loom. The Republicans in the Florida legislature — and the Washington one — will stomp their feet and rattle their swords. Heck, George W. Bush might even address the nation with something other than "counted, recounted and recounted again." And it will be Gore and David Boies against the world.
Which still puts it at about 50-50.