Supreme Court compromises its legitimacy

By Jack M. Balkin, 12/12/2000

IKE SOME dreadful pestilence, the presidential election of 2000 seems to eat away at the legitimacy of every institution it touches. The US Supreme Court has become its latest victim.

When the US Supreme Court heard its first appeal of the Florida Supreme Court's decision on Dec. 1, the justices apparently thought that they could lend their enormous prestige to settling the nation's election crisis once and for all.

But by the time oral arguments be gan, they had discovered two embarrassing facts: First, nothing they could do in the case before them would change the outcome of the election contest that had begun in Florida after they granted an appeal. Second, they were badly divided along ideological lines, and any decision on the merits might undermine their own legitimacy. So they punted, sending the case back to the Florida Supreme Court with instructions on how to rewrite its opinion to avoid creating a federal question.

Then on Friday, the Florida Supreme Court ordered recounts to continue. But instead of the unanimous ruling it had offered a few weeks before, it split 4-3. The next day, the US Supreme Court took the case and stayed the recounts.

By now, the ideological fissures that the high court had bravely tried to paper over have become starkly apparent. Five conservative justices - ironically all strong supporters of states rights - held that Texas Governor George W. Bush, the Republican presidential contender, would suffer irreparable harm if more Florida votes were hand counted.

Perhaps equally important, they held that there was a substantial likelihood that Bush would succeed on the merits when the case was heard Monday. If nothing changes, the case will eventually go 5-4 for Bush. To win, the Gore camp must persuade one of the conservative majority that they were too hasty. If history proves correct, Justices Anthony Kennedy and Sandra Day O'Connor will prove to be the pivotal votes. In yesterday's oral argument, they were critical of both sides.

A 5-4 decision for Bush now would hurt the Supreme Court's image of impartiality as much as it would help Bush. It would confirm that the home of judicial activism and result-oriented jurisprudence on this court is its conservative wing.

In his opinion in support of Saturday's stay, Justice Antonin Scalia was refreshingly forthright in his view that if votes were counted and showed Vice President Al Gore, the Democrat, ahead, this would undermine the legitimacy of a future Bush presidency. Hence, the votes must under no circumstances be counted.

Of course, this has been the basic strategy of Bush's team from the beginning. At the oral argument the attorney for Secretary of State Katherine Harris insisted that votes not read by machines were not legal votes regardless of what voters intended, but none of the justices now made such a bold claim.

The most likely result still seems to be a 5-4 decision for Bush. But another possibility has now emerged - a 6-3 decision remanding the case to Florida to determine a state wide standard for manual counting of undervotes. That coalition would consist of Kennedy and O'Connor plus the four liberals. Whatever happens, all of the justices, including Kennedy and O'Connor are well aware that the court's authority and prestige is on the line.

In the Nixon tapes case, US v. Nixon, the Supreme Court's unanimous decision ended a national controversy and, in the process, greatly enhanced the court's own standing. But a bitterly contested 5-4 decision - no matter who it favors - will have precisely the opposite effect for the both the country and for the court.

The Supreme Court has failed the country before. Sometimes it fails the country by staying its hand - as, for example, in the 1903 case of Giles v. Harris, when it effectively allowed blacks to be disenfranchised in Alabama. But more often it fails the country when it reaches out to decide a controversy that it should have left alone, like the Dred Scott case in 1857, when it attempted to resolve the slavery question once and for all and simply poured fuel on the flames of sectional strife.

As in 1857, the court may have wanted to help the country resolve its constitutional crisis. But if it does not forge a consensus, it may make everything much worse. And the next time it intervenes in an important national issue, people will have less faith in its impartiality and its ability to rise above politics.

By attempting to shore up Bush's legitimacy, the US Supreme Court has strongly compromised its own. This is hubris, the stuff of classical tragedy. Let us hope the court's blunder in this case does not lead to a larger, genuine national tragedy.

Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School and author of ''Cultural Software, a Theory of Ideology.''