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Does the Supreme Court Rush in Where Wise Judges Would Fear to Tread? [Commentary]

Professor William G. Ross, Cumberland School of Law, Samford University

The U.S. Supreme Court痴 intervention in the disputed presidential election was virtually inevitable, despite wishful predictions by Democrats that the Court would not meddle with state election law. As countless commentators have pointed out, the electoral impasse provides yet another illustration of the wisdom of Alexis de Tocqueville痴 overworked observation that 都carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. A corollary to this truism is that any major judicial question eventually finds its way to the Supreme Court. As has happened so often in American history, the Court may attempt to answer questions that the political process has failed to resolve.

In particular, the Court is expected to address the constitutionality of the Florida Supreme Court痴 decision requiring the Florida Secretary of State to extend by eleven days the deadline for accepting county certificates reflecting manual recounts of votes. The Court will consider whether the Florida court痴 decision violated Article II of the Constitution, which gives power to a state痴 legislature to determine the manner of appointing presidential electors. The Court will also consider whether the Florida decision violated the due process rights of voters by contravening a federal statute, Title 3 Section 5 of the United States Code, which requires states to resolve any disputes over the appointment of presidential electors by exclusive reference to state law enacted before election day; attorneys for Bush contend that the Florida court痴 decision violated the statute by changing the law after the election. The Court has also asked the parties to brief and argue the question of what consequences would follow from the Court痴 finding that the Florida decision failed to comply with the federal statute.

Attorneys for Bush argued in their brief in favor of certiorari that the Court properly has jurisdiction because 鍍he federal Constitution and congressional enactments make clear that state laws regarding the appointment of presidential electors are a matter of federal concern. In opposing certiorari, Gore痴 attorneys argued that the Court痴 intervention would improperly intrude upon a question that 妬s fundamental to state sovereignty.

Regardless of the merits of the lawsuit or the question of whether the Court has jurisdiction in this case, one might properly question whether the Court is the proper or ideal agency for resolving the election controversy and whether its resolution by the Court would serve the best interests of either political party, the Court, or the nation as a whole.

In their brief in support of certiorari, Bush痴 attorneys suggested that the Court痴 involvement would help to prevent 鍍he ascension of a President of questionable legitimacy. In response, Gore痴 attorneys argued that the Court痴 interference with state law 努ould only diminish the legitimacy of the outcome of the election.

While Bush痴 attorneys are probably correct that the Court痴 intervention could help to legitimize the election of the next President (if the election in any way depends upon the Court痴 ruling), the Court痴 intervention might diminish the legitimacy of the Court. Although this diminution would probably be slight, any diminution would be unfortunate. At the very least, some of the inevitable partisan rancor about the election may find expression in hostility toward the Court.

The Court痴 intervention could go far toward legitimizing the election of the next President insofar as the Court commands more public respect than any other political institution. In particular, the High Court痴 review of the Supreme Court of Florida痴 decision could erase the bitterness among Bush supporters caused by their widespread perception however unwarranted -- that the Florida court痴 unanimous decision was influenced by the fact that all seven jurists are Democrats. The Supreme Court justices, in contrast to the Florida judges, do not wear their partisan labels on the exterior of their robes and they do not need to face the electorate in retention elections. Even if the Supreme Court affirmed the Florida decision, Republicans would be hard-pressed to allege hopeless bias by a Court in which seven of the nine justices are at least nominal Republicans who were nominated by Republican presidents.

Although each justice was identified with a political party before his or her appointment to the Court, and each was nominated by a president of his or her own party, the justices are not known for having strong party ties. With the exception of Chief Justice Rehnquist and Justice O辰onnor, none of the justices was deeply involved in partisan politics before his or her appointment. Only O辰onnor, who served Republican majority leader of the Arizona Senate, has held significant partisan elective office. By historical standards, the present Court is politically virginal. The Court in past times often was a second career for superannuated governors and senators. A former president (William Howard Taft), a former presidential nominee (Charles Evans Hughes), and former vice presidential nominee (Earl Warren), all Republicans, have served as Chief Justice. And, in contrast to today痴 Nine, numerous justices of yesteryear harbored presidential ambitions, sometimes quite openly, while others acted as informal presidential advisors.

But while few if any of the present Justices have fierce party loyalties or engage in partisan activities, each of the Justices is known to adhere broadly to a political and ideological position that tends to match those of one of the political parties. While these positions generally correlate with their nominal party affiliation, at least two of the 迭epublican Justices Stevens and Souter have voting patterns that broadly favor Democratic positions on issues.

Even if the Justices strive mightily to exclude political considerations from their deliberation of the election case, votes that seem to correlate with partisan sympathies might actually exacerbate partisan tensions in the nation. If, for example, the Court divided five-to-four in favor of the Republicans, with Rehnquist, O辰onnor, Kennedy, Scalia, and Thomas in the majority and Stevens, Souter, Ginsberg and Breyer in dissent, the public might well wonder whether partisan sympathies affected the outcome. Such suspicions might be particularly pronounced since such a result would be opposite to the Court痴 usual alignment on issues involving federalism. The objectivity of the Justices in such a situation would be particularly subject to doubt insofar as the likelihood of vacancies on the Court during the next few years gives the Justices an especially strong reason to care about who becomes the next president. Indeed, some of the Justices may have a very personal interest in the outcome insofar as it may affect the timing of their retirements.

Of course, suspicions of partisanship could hardly develop if the votes of the Justices are correlated with their positions on federalism. If this happened, Justices who usually vote in favor of the states rights positions favored by Republicans would vote in favor of the Democrats while the Justices who tend to favor broad federal power would vote for the Republican position. Similarly, the Court could ameliorate suspicions of partisanship if its vote were unanimous or at least not closely divided.

Even if the Court could escape charges of partisanship, however, the Court痴 involvement in such a highly partisan issue could undermine public respect for the Court. The Court would still have ventured into what Felix Frankfurter disapprovingly called a 菟olitical thicket. Unless the Court can conceive of some solomonic solution, its decision potentially will antagonize half the nation. Although the Court has often offended broad segments of the nation by ruling on highly divisive political issues school segregation, school prayer and reapportionment are the classic examples from the past half century even the Court痴 most controversial rulings have usually commanded the support of most political leaders and at least a majority of the general public.

On the rare occasions when the Court has ventured to rule on issues on which there is not at least a broad national consensus, the Court痴 prestige has suffered. The Court痴 1857 Dred Scott decision on slavery remains the classic example of what Charles Evans Hughes called a 都elf-inflicted wound. And the Court痴 hostility toward highly popular New Deal legislation during the 1930s precipitated Franklin Roosevelt痴 attempt to pack the Court, which failed only after the Court changed its direction. In more recent times, the Court wisely sidestepped opportunities to rule on the legality of the Vietnam War.

Until now, the only significant occasion in which the Court was at the center of a controversy involving the fate of a presidency was in July 1974, when the Court by an eight to zero vote required Richard Nixon to comply with a subpoena to turn potentially incriminating tapes over to the Watergate special prosecutor. Although the Court痴 decision sealed the doom of the Nixon presidency, the Court痴 constitutional position was arguably stronger in that case because the question of whether Nixon had to comply with a subpoena issued by a federal district court was unequivocally federal and clearly judicial. Moreover, the Court痴 practical political position was stronger than it is now because there was a widespread consensus by the summer of 1974 that Nixon should leave office. Indeed, Republicans generally may have been even more pleased by the Court痴 decision than were Democrats insofar as the decision helped to ease the removal of a president who had become an embarrassment to his party.

Even if the Court rules on the merits and does not damage its own prestige in making its decision, the procedural issues before the Court still will fail to settle the question of how to determine, to the most reasonable possible extent, which candidate received more votes. The Court痴 decision about the deadline for certifying votes likewise will not necessarily resolve issues about the validity of the votes certified and therefore will not necessarily foreclose additional litigation.

In some ways, of course, the confinement of the Court痴 adjudication to a procedural issue may protect the Court痴 reputation, since the Justices -- at least in the present case --will not be placed in the awkward position of actually deciding who won the election, a posture that could result in one swing Justice picking the next President.

Since the Court痴 decision will involve only one discrete subject rather than any on-going controversy, the Court痴 decision is not likely to precipitate any movement to curb the Court痴 powers. Even if such a movement began, the Court would probably survive any attacks with all of its powers intact, just as it has during so many other times of controversy. By spending some of its precious goodwill, however, the Court might have less public support from which to draw in future years as it adjudicates controversial issues that more clearly lie within its jurisdiction.

The paradox of the Court痴 power is that the Court is potent because it uses its power sparingly. We should hope that the Justices considered this before granting certiorari in the Bush case.

November 26, 2000 [revised November 28, 2000]

William G. Ross teaches Constitutional Law and Constitutional History at Cumberland School of Law, Samford University, Birmingham, Alabama. He is a 1979 graduate of Harvard Law School. He welcomes comments on his columns at JURIST@law.pitt.edu