The US Supreme Court holds the power to break the deadlock in Florida's 2000 presidential election. But at what price?
If a majority of justices rule decisively in favor of George W. Bush or Al Gore, legal analysts say the court risks drawing accusations of political bias, or worse, charges that the high court is installing the next president.
With the nine justices set to hear arguments on Friday in the Florida election dispute, some analysts are questioning whether the case might alter public perceptions about one of America's most trusted and revered institutions.
"To some extent, it is an inevitable consequence of engaging in a high-stakes case, in which they have undertaken to solve the conflict between two presidential candidates," says Paul Rothstein, a professor at Georgetown University Law Center in Washington. But he adds, "The United States Supreme Court enjoys much more respect from the people than does any state supreme court and it will, by and large, have legitimacy in all but the most partisan quarters."
Indeed, the US Supreme Court basks in a somewhat exalted status in comparison to the other two branches of the national government. And the justices jealously protect the court's image as an impartial forum for the resolution of thorny legal disputes.
But the court has also received its share of criticism. In addition, future high-court appointments were a campaign issue during the presidential election.
Seven of the nine justices were appointed by Republican presidents. But legal analysts stress that party affiliation alone is not an accurate predictor of how individual justices may rule.
Nonetheless, some observers are asking whether the US Supreme Court can avoid the taint of partisan politics in a case that is so obviously political.
"They can't," says Gov. Frank Keating, (R) of Oklahoma. "Everyone is a partisan."
Governor Keating and other Republican leaders are in Florida to witness the manual ballot recount and to register objections to a process they say is unfair.
"Judges are political like everyone else," adds Gov. William Janklow (R) of South Dakota, referring to the US Supreme Court. "They are not above politics."
The comments come less than a week after the Florida Supreme Court was lambasted in the wake of a decision that many Republicans viewed as an attempt by the Democrat-appointed justices to hand the election to Vice President Gore.
Governor Bush denounced the Florida court's decision as flagrant judicial activism.
"The court had cloaked its ruling in legalistic language," Bush said. "But make no mistake, the court rewrote the law. It changed the rules, and it did so after the election was over."
Did Florida court usurp authority?
Many legal analysts, including lawyers for Gore, say the Florida court's decision is entirely defensible on legal grounds. They say the justices used well-established methods to interpret ambiguous state statutes.
But other analysts agree with Bush that the state court seemed more than willing to wield the kind of power normally entrusted to elected officials.
This is the basic issue the US Supreme Court will consider when the justices hear oral arguments from lawyers on both sides in Washington on Friday.
If a majority of justices agree with Bush and his lawyers that the Florida court overstepped its authority, the justices might rule that Florida Secretary of State Katherine Harris has the power to enforce deadlines imposed in Florida law.
In consequence, any manual recounts completed after Nov. 14 would not be counted in presidential totals, and Bush's lead would increase substantially.
If, on the other hand, the justices agree with lawyers for Gore that the Florida court was merely helping to clarify a contradiction in state law, the justices might rule that the Florida election process should be allowed to run its course without interference from the federal courts.
This would be a major victory for Gore, not only by keeping manual-recount numbers in the presidential totals, but also in suggesting any future legal disputes should be resolved ultimately by state courts in Florida.
Many legal analysts had predicted that the US Supreme Court would avoid wading into the election quagmire in Florida, because to do so would run counter to the conservative majority's interest in bolstering states rights.
But this analysis misreads the court's intentions.
The Supreme Court's jurisprudence in the federalism area during the past five years has more to do with restoring a republican structure of government outlined in the Constitution than bolstering the power of the states vis a vis the federal government.
From this perspective, it is not inconsistent for a court that has pursued a federalism agenda to also seek to rein in a state Supreme Court that is accused of undercutting requirements spelled out in the US Constitution and federal law for the selection by states of electors, analysts say.
That is a question of federal and constitutional law that ultimately must be decided by the US Supreme Court.
No middle ground
The issues in the Supreme Court case are narrowly drawn. And analysts say the court doesn't have many options for a middle-ground opinion that gives and takes from both sides. A ruling on the merits will likely amount to a solid victory for one candidate and a solid defeat for the other.
And that means a portion of the country will be disappointed and perhaps angry. "No matter which way the court comes out, there will be those who see the ruling as partisan in this highly charged environment. The court cannot avoid that problem," says Roger Pilon, vice president for legal affairs at the Cato Institute in Washington.
"What the court can do is apply basic legal principles and hope that its doing so will be seen by most people as upholding the rule of law."
(c) Copyright 2000. The Christian Science Publishing Society