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It seemed clear at oral argument in the first round that the Justices were split on partisan grounds. "The most worrisome thing," says University of Chicago law professor Cass Sunstein, "was that the conservatives just gave Gore's lawyer a hard time, and vice versa." And the curt order the court issued Saturday showed the rift is still there. The dissenters issued a stern rebuke to the majority. By stopping the recount, Justice Stevens wrote for all four dissenters, the majority was abandoning its "venerable rules," including the well-established principle of deferring to state courts on questions of state law. The dissenters concluded that the majority had "acted unwisely"--which passes for serious trash talk on the high court.
The court may ultimately break down along these same partisan lines. Justice Scalia, the court's most conservative member, all but boasted in a short opinion that his side would have the votes in the end. That the stay was issued at all, he wrote, "suggests that a majority of the Court" believes Bush has "a substantial probability of success." But it may be significant that, unlike the four-person dissent, Scalia's concurrence was signed by him alone. The Democrats are already talking about peeling away a moderate member of the conservative bloc--Kennedy or possibly O'Connor. Until a ruling comes down, those two Justices will be two of the most powerful people on the planet.
The battle of the courts started with the Florida justices, and it's hard to overstate the boldness of their sweeping recount order. American courts have certainly been historic before: ordering public schools to admit blacks in the 1950s and helping oust President Richard M. Nixon by ordering him to turn over the Watergate tapes in the 1970s. But those decisions were handed down by the U.S. Supreme Court, steeped in prestige and equal in the Constitutional scheme to the President or Congress. The Florida court is made of seven people even most Floridians couldn't have picked out of a lineup two weeks ago.
Making its work tougher still, this Florida Supreme Court was besieged by rivals on all sides. Above, the U.S. Supreme Court has overturned it once, and some say the Republican majority there might be willing to do it again this week. Below, Judge N. Sanders Sauls of the Leon County Circuit Court, who has been at odds with the Florida Supreme Court for years, had declined to order recounts. In Atlanta, a federal appeals court was considering a Bush lawsuit aiming to throw out all the recounts. And in Tallahassee, the Florida legislature--another old enemy--has been threatening to ignore the court and simply select the Bush Electoral College delegates. As for Jeb Bush, he was feuding with the Florida justices even before they tried to make it more difficult for his brother to reach the White House.
There were deep divisions as well in the Florida Supreme Court's own ranks. It is Jurisprudence 101 that when a court delivers a bombshell decision, the judges struggle to be unanimous. But the Florida court split 4-3, and the rift was a bitter one. Attached to the court's ruling was a dissent from the Chief Justice warning that the majority risked sending the nation into "an unprecedented and unnecessary constitutional crisis"--a powerful built-in sound bite for critics waiting to tear the majority decision apart.