A Supreme Win That May Not Matter

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The nine members of the United States Supreme Court

Having already waded voluntarily into this historic non-election by taking up George W. Bush's appeal, the nine exalted Justices on the U.S. Supreme Court basically had three options: a blessing for Gore, a blessing for Bush, or a polite cop-out.

They chose the latter two.

Casually dropping an unusually prompt decision at noon on a nation waiting for a ruling from Judge Sanders Sauls on his weekend festivities, the Court "vacated" (wiped off the books) the Florida Supreme Court's decision to extend the certification and hand-count deadlines, essentially resetting the clock to November 17 and the Bush lead to 930 votes. But only till the Florida Supremes try again.

All the Supreme Court really did was ask the state Supremes on what grounds — a federal question or a state question — they based their decision. And it did so in a "per curiam" decision — no dissenting opinions, no signatures, just a seven-page document "speaking for the court" — thus avoiding not only the question of federal statute and court-versus-legislature jurisdiction, but also any perception that the highest court in the country might be split along the same lines as the rest of us.

Which means it probably was. So rather than make a 5-4 decision with enormous precedential weight and uncertain political implications, the Court sent the whole "protest"-phase mess back to the Florida Supremes to readdress the issues, clarify its thought processes, and call them back. Which the state court will certainly do, even while hearing Gore's now-certain appeal of Judge Sauls' "contest"-phase decision against him to that same seven-member body.

Meanwhile, the political clock ticks. David Boies was out within the hour to downplay the decision — "We think the U.S. Supreme Court decision does not in any way affect the contest before Judge Sauls" — before favoring reporters with some well-spun analysis of the implications. For Boies, still fighting for a clean-slate hand count of some 14,000 votes, a decision that at worst costs his client only the 400-odd Broward County votes and does nothing to the ongoing "contest" except muddy it up a bit is just another fly on his legal windshield. "There's no reason this needs to delay things," said Boies. He was slightly less optimistic after Sauls' clean-sweep-for-Bush decision Monday afternoon, but still thinks the Florida Supremes can "act expeditiously" to save Gore in time.

But the headline still says "Gore Loses in Supreme Court, Recount Hearing" and that's more grist for the concession mill. (It even sparked a brief "Bush rally" on Wall Street.) A "very gratified" James Baker came out at 3 p.m. to explain how the high court had reinforced the Bush camp's arguments against the extensions and hand counts, even if it had given the Florida Supremes another crack at addressing them. But as hard as Baker was working to convince reporters the Supremes had handed him a win, he wasn't about to call anew for Gore's surrender when victory, in this ruling, seemed to be in the eye of the beholder.

Later, at one of his pool-camera press briefings, Bush said he was "pleased" at the decision and that Americans should be "comforted" at the high court's involvement. He said that several times, and even showed some willingness to tiptoe verbally through the legal implications for his side and Gore's. But when asked about a Gore concession, Bush wouldn't second Cheney's Sunday call for Gore to quit.

Perhaps the Florida legislature will read into the ruling a veiled signal from SCOTUS that the standard for messing with state lawmakers is pretty high. They may be further emboldened to use a special session to loudly anoint their own winner before the Dec. 12 elector-designation deadline.

But Al Gore still won plenty by not losing. The Florida Supreme Court will eagerly take up its second chance to pass muster with its betters, and the Gore campaign has no concrete reason to give up its current, much more critical fight before that court for new hand counts in Miami-Dade and Palm Beach. Possibly they'll have to add Broward County to that list. Boies' sweeping de novo request covers more than enough votes for Gore to win.

So the highest and mightiest court in the land has added its booming voice to the cacophony of this interminably indecisive election, and decided very little indeed.