If you were within earshot of a television early last week, you heard the consensus of the legal pundits. Florida's Supreme Court was running scared. It had been slapped down by the U.S. Supreme Court Monday and told to rethink its decision ordering manual recounts. And the experts were fixated on the fact that at oral argument last Thursday, Chief Justice Charles T. Wells asked whether his court even had a right to hear the case. The Florida justices, conventional wisdom held, were looking for a way to bow out gracefully from a showdown with the U.S. Supreme Court.
But the Florida court defied expectations last Friday and handed down one of the nerviest decisions in the annals of American law. A bitterly divided 4-3 court ordered that every Florida county tabulate or recount its undervotes. The ruling had Gore partisans extolling the noble tradition of an independent Judiciary--the one actor, in a state run by Republican Governor Jeb Bush and Republican ally Katherine Harris, free to do the right thing. But to the Bush camp, the Florida justices were just liberal power grabbers, intent on overturning a certified election result favoring the Republicans. Florida house speaker Tom Feeney blasted a renegade court, "more partisan than judicial."
Within 24 hours, the U.S. Supreme Court weighed in with a bitterly divided blockbuster of its own: a 5-4 order directing the Florida canvassing boards to halt the recounts. Once again, the reaction was divided and partisan, but flipped in a fun-house mirror. This time, it was the Bush camp's James Baker saying it was "very, very gratifying" that the U.S. Supreme Court had "indicated a willingness and an interest in hearing this very, very important case." And it was the Gore campaign charging that a court was trying to hijack the will of the people.
The high court's dramatic order set the stage for what may be the greatest clash of courts in American history. As the U.S. Supreme Court considers the case this week, the debate will be phrased in legal niceties: deference to state courts vs. deference to state legislatures; Article II of the U.S. Constitution and 3 U.S.C. Sec. 5. But beneath the law talk is a power struggle of epic proportions. The stakes could hardly be higher. How the U.S. Supreme Court rules could, of course, determine the next President of the United States. But something even larger is hanging in the balance: whether Americans will continue to have faith in the courts, the rule of law and the integrity of the democratic process.
A showdown between the Florida and the U.S. Supreme courts is really no contest. Under federalism, the U.S. Supreme Court can overrule state courts where issues of federal law are involved. But the real drama lies in whether five Justices will actually decide to do that. Unlike the high court's first ruling in the case, which was carefully if precariously unanimous, the latest one broke down in just the ideological way everyone had hoped to avoid. The five conservatives--Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Anthony Kennedy, Antonin Scalia and Clarence Thomas--voted to issue the stay. The four liberals--Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter--voted to let the counts go on.