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But some court watchers think that may not have been enough. When the U.S. Supreme Court issued its ruling vacating the Florida Supreme Court's first decision, it directed the Florida justices to provide a clearer explanation for their reasoning. At the time it issued its ruling ordering the recounts, the Florida court still had not attended to that homework assignment from on high. It can be argued that the court addressed it implicitly in its new decision, which avoided making the same mistake, or that the first ruling has been overtaken by events. Still, the U.S. Supreme Court is not used to being ignored.
As it put together its decision, though, the Florida Supreme Court had other adversaries to worry about. There was already bad blood between the justices and Judge Sauls, the trial court judge whose decision they were reviewing. In 1998, in a highly unusual move, they summoned then Chief Judge Sauls to discuss charges by courthouse employees and other judges that he was running the Leon County Circuit Court in a dictatorial fashion. Stung by the criticism, Sauls resigned as chief judge. In accepting the resignation, the justices cited "the continuing disruption in the administration of justice" under his stewardship. Sauls was outraged. "He told me that he could not believe that the Supreme Court justices, of all people, were not interested in the facts," his wife told the New York Times.
Even in friendlier circumstances, reversing a trial court is a tricky business. Appellate courts must be careful about second-guessing lower courts on facts, which the trial judge has often seen firsthand. They have more leeway in reversing for mistakes of law. The Florida justices shrewdly based their decision on what they say were legal mistakes by Judge Sauls on standard of review and burden of proof. Decisions of the canvassing boards do not deserve the highly deferential "abuse of discretion" standard Judge Sauls applied in deciding not to second-guess them, the Florida justices said. Better still, the court found that he wrongly held the Gore plaintiffs to an onerous "standard of a reasonable probability" of a recount changing the outcome; it said he failed to notice that the relevant statute had been changed last year. Ouch.
The court also waged a frontal assault on Judge Sauls' fact finding. The justices rejected his conclusion that Gore had not met his burden of showing that sufficient legal votes were rejected to warrant a recount. In part, they relied on what they called "the ultimate Catch-22" in Judge Sauls' approach: he had concluded there were not enough rejected votes without ever looking at the ballots themselves.
The Florida Supreme Court tried to build in protections against the Bush campaign's federal attack. A key Republican claim has been that the recounts violate the 14th Amendment's equal-protection guarantee because they were occurring in some counties and not in others. The effect, the Republicans said, was to give extra voting rights to citizens in counties that have recounts. The justices' response was, once again, shrewd: order undervotes counted in all counties, and no one is legally disadvantaged.