Fairly or not, court takes on political hue

The split nature of the tribunal - and the nation - will mean increased scrutiny over whether it acted properly.

In the end, the US Supreme Court came out as deeply divided over the 2000 presidential election as the nation itself.

That fact is abundantly clear on each page of the high court's 64-page ruling that once again reversed the Florida Supreme Court and recalibrated the presidential vote tallies in favor of George W. Bush.

But the broader question that will linger long after the new president is sworn in by Chief Justice William Rehnquist next month is whether the judiciary played a proper role in Election 2000.

For better or worse, Americans are now less likely to view their judges solely as neutral arbiters of the law. They are more likely to search, perhaps unfairly, for a political motive behind sensitive judicial decisions.

The presidential litigation has, in fact, dramatically raised the stakes for the judiciary at all levels in the US. And it has set the stage for all-out warfare over the next Supreme Court nominee.

"For some time, people will have difficulty accepting that any judge is all that different from any other political actor, and that is unfortunate, because in a democratic society committed to the to rule of law, we depend on an independent judiciary to rise above party concerns," says Michael Dorf, a law professor at Columbia University in New York.

Certainly, there is ammunition for lingering dissatisfaction and debate on both sides of the political divide, as well as both sides of the ideological fault lines within the high court itself.

Did the Florida Supreme Court overstep its authority and rewrite Florida election law after Nov. 7 in a way that heavily favored Vice President Al Gore?

Did the US Supreme Court overstep its place in American government by twice overturning the Florida court in a way that swung the electoral pendulum back toward Mr. Bush?

"Although we may never know with complete certainty the identity of the winner of this year's presidential election, 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," writes Justice John Paul Stevens in his dissent to the majority opinion.

In bitter dissents, both Justice Stevens and Justice Ruth Bader Ginsburg say the US Supreme Court has no business second-guessing state-court judges in Florida.

But they are in the minority.

Seven justices found that Florida's most recent attempt last weekend at a statewide hand recount of disputed ballots resulted in a violation of constitutional protections by counting similar votes differently, depending on where in Florida those votes were cast.

But even those seven justices couldn't agree on a common remedy. Two justices, David Souter and Stephen Breyer, favored sending the case back to Tallahassee for state judges and officials to fashion a new, more fair mechanism that would allow more disputed ballots to be recounted. Five other justices concluded that time had already run out.

The highest court is not the only one facing added scrutiny: Many Bush supporters question whether Florida's seven Supreme Court justices, all appointed by Democratic governors, were acting more as political operatives than neutral jurists.

Twice, Bush petitioned the US Supreme Court to intervene in the dispute. The high court, with seven justices appointed by Republican presidents and with a five-justice conservative majority, became a target of criticism from Gore supporters, who accused the justices of acting out of political self-interest rather than judicial necessity.

The Supreme Court itself was a key campaign issue, with warnings about the broad implications of certain justices retiring. Indeed, any justice contemplating retirement during the next four years has a vested interest in who becomes president.

But would that or other mere political considerations influence a justice's vote?

"I would hope that none of the justices consciously thought, 'What can I do to benefit the candidate I voted for?' " says Professor Dorf, who was a law clerk for Justice Kennedy. "I don't think that actually occurred, but I do think that political considerations in a narrow sense must have played at least some subconscious role, given what, in my view, is an inconsistency between the Rehnquist court's general solicitousness for states and the outcome in this case."

There has never been an instance in US history when the judiciary has played such an important role in a presidential election.

Chief among those expressing concerns about the implications of that are the justices themselves.

"None are more conscious of the vital limits on judicial authority than are the members of this court, and none stand more in admiration of the Constitution's design to leave the selection of the president to the people," write all nine justices in an umbrella opinion on behalf of the entire court.

"When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."

Analysts say the court laid its prestige and credibility on the line when it entered the presidential election dispute.

But the long-term blow to its status may not be as severe. "The Supreme Court - even though it has taken a hit - has deep roots in the American psyche and tradition," says Allan Lichtman, a history professor at American University in Washington. "And it will certainly survive this."

Staff writer Kris Axtman contributed to this report.

(c) Copyright 2000. The Christian Science Publishing Society

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