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Supreme court fails to argue recount ruling

BY CLYDE SPILLENGER

The case of Bush vs. Gore has reminded us that legal arguments worth having allow for more than one reasonable answer.

The U.S. Supreme Court's final conclusion - that hand recounts must stop because of the inconsistent standards being applied - was not in itself "wrong." Nor would a contrary conclusion have been "wrong." One could have written an opinion either way that would have stood the test of reasonableness.

But how an opinion is written - how it makes its conclusions persuasive, or at least acceptable, to those who disagree - is crucial. And in this task, the U.S. Supreme Court failed utterly, and to its discredit.

In its first order setting the case for briefing and argument, the court noted its special concern with the so-called "safe harbor" provision of federal law. The notion that the "safe harbor" provision bound the Florida Supreme Court in any meaningful way, or gave the U.S. Supreme Court any reason to act, was not credible - not even "serious," as Justice Souter later pointed out.

Next, the court remanded the case to the Florida Supreme Court, with an admonition that the U.S. Constitution forbade any "change" in the Florida Legislature's statutory election scheme, even one based on Florida's Constitution. This, too, is a flawed argument. Neither logic nor precedent suggests that a state legislature must act free from the constraints of the state constitution that created it, even in presidential elections.

Nevertheless, the Florida Supreme Court followed the court's admonition, clarifying its opinion that it was simply interpreting the state Legislature's mandate. Moreover, in its final opinion, ordering recounts throughout the state, the Florida Supreme Court avoided creating a uniform standard for counting ballots.

Finally, on appeal from this ruling, the court overruled the Florida Supreme Court on the ground that the Equal Protection Clause was infringed by a number of inconsistencies in the proposed recount process - a reasonable concern. The court, then, might have explained how its conclusion fit in with previous decisions under the clause, the most litigated passage of the U.S. Constitution. However, its final decision has the quality of a conclusion without an argument - in one of the most important cases it has ever decided. Worst of all, the sequence of its actions - first preoccupying the Florida court with its views on the "safe harbor" provision, then discovering at the 11th hour the problem of equal protection while leaving the Florida court with neither the time nor the legal space to address the problem - has left the U.S. Supreme Court vulnerable to the charge that it engaged in ill-concealed opportunism.

In perhaps its most remarkable observation, the Supreme Court said, "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." This observation is the very antithesis of the rule of law. The Court's authority to decide such momentous questions rests on its ability to demonstrate that its reasoning is not just made for the occasion, but expresses a more universal norm. That is why, despite the fact that the Court could have made its conclusions persuasive, its actions instead constitute one of the sorriest chapters in its history.

Professor of Law Clyde Spillenger is a self-described "whining loser who voted for Jesse Ventura". He teaches constitutional law and legal history.

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