Has SCOTUS Gone Political?

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The nine members of the United States Supreme Court

The U.S. Supreme Court Justices are practiced at weathering the political storms their opinions generate. But nothing could have prepared them for the firestorm of accusations following Tuesday night's 5-4 opinion, which, some argue, not only effectively ceded the presidency to George W. Bush but, more importantly, altered the public face of the Court, removing the Justices from what most Americans perceive to be their exalted and unstained realm of judicial objectivity and dipping them into roiling political waters.

The most vociferous of the charges emanate from left-of-center pundits, who maintain that the Court's majority, composed of Reagan-Bush appointees, has, as NYU law professor Barry Friedman told the New York Times, "decided for the State of Florida that the Dec. 12 deadline was more important than finding the will of the voters."

It's not just outsiders who greeted the Court's decision with charges of overstepping judicial boundaries. There is no precedent, Justice Ginsburg argued in her dissent, for the Court to so blatantly dismiss the rulings of a state supreme court. Justices Ginsburg, Souter, Breyer and Stevens all registered varying degrees of discontent with the majority rule in their dissents. Stevens accused the Court of "effectively ordering the disenfranchisement of an unknown number of voters whose ballots reveal their intent — and are therefore legal votes under state law — but were for some reason rejected by ballot-counting machines."

Even a few conservatives were unsettled by what they saw as unapologetic judicial activism, and worried about the precedent it established. University of Utah professor Michael McConnell (who has been rumored to be under consideration for a position in the Bush administration) told NPR's Nina Totenberg: "It does look as though at least the issue of vote counting will become a federal constitutional issue." In other words, the SCOTUS decision has opened the floodgates for election challenges from all over the country.

It didn't have to be this way, as liberal scholars love to remind us. While seven of the Justices were apparently convinced that the constitutional basis of the Bush complaint warranted federal review, Justices Ginsburg and Stevens predicted a rash of cynicism following any decision — both urged SCOTUS to send the case back to the Florida court without comment. That 7-2 chasm on the Court echoes the astonishing nationwide political flip-flop we've witnessed over the past five weeks as the left found itself pulling for state autonomy and conservatives suddenly saw the joys of federal intervention.

While most of the country is looking forward to moving on from this election, this case's political ramifications may extend well beyond Inauguration Day. Some, including the Washington Post's David Broder, argued that the Court's pro-Bush decision could have inadvertently bestowed the upper hand to the Democrats. "The issues raised in the blistering dissents from the court's two Democratic-appointed justices — and the two Republican appointees who agreed with them — are likely to become battle cries in the mid-term election of Congress in 2002 and the presidential race in 2004," Broder wrote Wednesday.

That sort of language prompts grim visions of deadlock and government shutdowns. Luckily for us, the Supreme Court has just named a president who claims to specialize in bringing people together — uniting, not dividing. Some say the highest court in the land has introduced its politics into judicial action. Now we'll wait to see if the new president can exorcise the aftermath of judicial action from his administration's politics.