Justice hits high court with history lesson

By John Donnelly, Globe Staff, 12/14/2000

ASHINGTON - On the 13th page of his dissent in Bush v. Gore, Supreme Court Justice Stephen G. Breyer reached back into history to warn about the precedent set by a justice who also helped decide a deadlocked presidential race.

The justice was Joseph P. Bradley, a Republican, who cast the deciding vote on an unusual electoral commission that gave the presidency in 1877 to Rutherford B. Hayes, also a Republican.

The lesson, Breyer wrote, was that in highly politicized cases such as Bush v. Gore or the Hayes-Samuel J. Tilden race, the Supreme Court runs the risk of ''undermining the public's confidence in the court itself.''

Writing about Bradley's involvement, Breyer said, ''This history may help to explain why I think it not only legally wrong, but also most unfortunate, for the court simply to have terminated the Florida recount.''

Bradley is best remembered for his role in the contested 1876 election.

To decide a contested 20 Electoral College votes from Florida, Louisiana, and South Carolina, Congress created an ad hoc Electoral Commission consisting of five senators, five House members and five Supreme Court justices.

Congress, then evenly divided, chose an even number of Democrats and Republicans from its ranks.

The four court members were to choose the fifth justice, who was universally assumed to be an independent from Illinois, David Davis. But the Illinois Legislature chose Davis for the state's vacant US Senate seat, and he withdrew from consideration. The justices then chose Bradley.

After Bradley cast the deciding vote on a series of 8-7 commission tallies in favor of Hayes on Feb. 23, 1877, the Democratic press condemned him.

Unconfirmed reports arose that Bradley told Democratic officials that he would be siding with Tilden, but that he later changed his mind after Republican politicians spent hours with him privately.

Writing about the aftermath, Breyer said: ''The relevance in this history lies in the fact that the participation in the work of the Electoral Commission by five justices, including Justice Bradley, did not lend that process legitimacy. Nor did it assure the public that the process had worked fairly, guided by the law. Rather, it simply embroiled members of the court in partisan conflict, thereby undermining respect for the judicial process.''