WASHINGTON — In developing countries such as Pakistan, Chile, and Sierra Leone, a transfer of power is often accomplished by military coup. In our country, it is done by judicial coup.
Admitting to something short of cool dispassion, I marvel at the way the gang of five, led by arch-conservative Antonin Scalia, tried to camouflage their 5-to-4 operation behind a nominal 7-to-2 agreement that there was a problem with the Florida recount. That seemed to leave open the chance of fixing the system. Their fix was in, all right, but a different fix. It suppressed the recount for good.
Any one of these five could have returned the contest to limbo. But none did. Decades of conservative support of states' rights, by overturning federal statutes from affirmative action to federal review of criminal cases, went out the window in an arrogation of authority to judge voting in Florida.
The tactics were adroit. First, the junta on Saturday halted the vote count. That enabled them to say on Tuesday that there was no more time left for vote-counting.
One thing about Tony Scalia is that he levels with you. Not every justice would say, as he did Saturday, that issuing the voting stay suggested Bush had "a substantial probability of success." Not every justice would own up to partisanship by saying the recounted votes "threaten irreparable harm to petitioner" - Governor Bush - "and to the country."
Justice Stevens, for the embattled minority of himself, Stephen Breyer, Ruth Bader Ginsburg, and David Souter, said on Saturday that halting the vote recount "will inevitably cast a cloud on the legitimacy of the election." Tuesday he said we may never know who was the winner of the presidential race, but "the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."
Justices have not always been so beholden to politicians. President Eisenhower, after leaving office in 1961, said his greatest mistake had been appointing to the high court Earl Warren and William Brennan, who sparked a liberal revolution. Chief Justice Warren Burger, a friend of President Nixon, joined the unanimous 1974 ruling obliging Nixon to release the Oval Office tapes that led to his undoing.
Reagan and Bush appointees Anthony Kennedy, Sandra Day O'Connor, and Mr. Souter, in 1992, cast the swing votes that preserved the constitutional right of abortion. Their opinion stated that overturning Roe v. Wade would do "profound and unnecessary damage to the court's legitimacy."
This legitimacy was something the tribunal has enjoyed almost alone among American institutions of government, unlike the presidency and the Congress. There was a perception that the black-robed nine march to different drummers, that they are not beholden to their presidential sponsors or their political views, that they harken to the law and Constitution, affected by the court's tradition and collegiality.
That legitimacy has been endangered by the court's intervention into the white-hot controversy over the presidency that opened the court to suspicion of partisanship. Before this issue arose there were suggestions of partisanship. Mr. Bush referred to Scalia and Clarence Thomas as models for the kind of justices he would name. Chief Justice Rehnquist and Justice O'Connor reportedly said they would like to retire under Bush to ensure being succeeded by conservatives. But now, these five have had a banner day. They have selected a president.
(c) Copyright 2000. The Christian Science Publishing Society