Uncalled witness: public opinion

By Anne E. Kornblut, Globe Staff, 12/7/2000

efore the seven members of the Florida Supreme Court gather today for the appeal that could conclude the post-election drama, some will read a morning newspaper, perhaps flick on CNN, or overhear strangers talking about the oddest presidential race in decades.

They will almost certainly bring their impressions of public opinion into the courtroom, where they will decide whether to overturn a decision not to allow manual ballot recounts. And given the extraordinary nature of the lawsuit - whose outcome could shape the political landscape for decades - many legal experts believe the judges will inevitably take public opinion into account as they chart the course of the election.

Unlike some other highly publicized cases - the O.J. Simpson murder trial, for one - the court cannot entirely separate the facts from the larger political crosswinds, several lawyers said. Nor should they, they added; although the judges are expected to set aside their own partisan leanings in deciding the case, they inherit a legal tradition that has treated politically charged cases as special, taking into account the practical effect of the ruling as they write it.

''The courts neither follow public opinion nor are immune to public opinion,'' said David Cole, a professor of constitutional law at the Georgetown University Law Center. ''They are human beings, just like the rest of us. In a sense, it's troubling; in a sense it's reality. People think the law should be entirely divorced from politics, and the objectives of legal decisions are to be nonpolitical and fair, but the reality is that on hard issues, there isn't an obvious answer one way or another.''

Kinvin Wroth, dean of the Vermont Law School in South Royalton, agreed. ''There's an ancient line ... even the Supreme Court justices read the newspapers,'' Wroth said. ''Typical decisions involve looking at real-world implications, too.''

Perhaps the best example of political considerations came in 1954, Cole said, when the US Supreme Court sought to desegregate public schools in the face of a hostile South. Fearing their ruling in Brown v. Board of Education would prompt a vicious backlash among segregationists, the judges acted slowly, waiting a year before they decided how the desegregation process would be put into effect.

The judges' conference notes, now archived in Washington, make their concerns clear, Cole said. ''What they're concerned about is, how politically to handle it,'' he said. ''They said, `The right thing to do here under the Constitution is to invalidate segregation, but how can we do that in a way that in the long run will be effective and not undermine our legitimacy?'''

Yet while the Florida Supreme Court may face a task nearly as daunting, the justices hardly have the luxury of drawing out their decision.

Although the next deadline, the Dec. 12 date by which Florida is supposed to choose its electors, is somewhat flexible, the Dec. 18 date for all Electoral College members to choose a president is not. At the same time, the Florida court is under additional pressure to act carefully, following the US Supreme Court decision Monday to vacate their ruling that extended the deadline for certifying the Florida vote.

Florida officials announced yesterday that the state's Republican-controlled Legislature will hold a special session tomorrow to pick a slate of electors for Bush, a move many see as designed to overrule the judges should they favor Al Gore. That creates an even thornier situation for the state's high court, which now must consider the prospect of locking horns with the Legislature, perhaps even sending the matter to Congress.

''You have a lot of conflicting currents going on,'' Cole said. ''The justices ruled initially for Gore, but there's momentum in favor of Bush, and the fact that the Supreme Court sent the case back down to them will make them feel like they have to be especially careful. The safe thing to do would be to affirm the lower court decision. What takes more courage is to rule in the other direction.''

As if those considerations were not enough, the judges also face the prospect of being accused of partisanship themselves. Almost all appointed by Democrats, the court triggered an outcry from Republicans when they allowed certain counties to continue tallying votes after the first deadline.

''They are aware of the dangers to them institutionally if they are perceived to have picked the president on the basis of personal preference,'' said Doug Lycock, a law professor at the University of Texas. ''They are aware that the loser is going to accuse them of that no matter why they ruled the way they did. This is a high-stakes case, so they are likely to be more careful; they aspire to get it right on the law and the facts, and not to be influenced by their politics.''

But, he added, ''They're human beings.''