(3 of 7)
The Gore team was led by Supreme Court war-horse Laurence Tribe, the Harvard law professor who last week received his 30th souvenir quill from the court, which gives the pens to attorneys who argue before it. To Olson's argument, Tribe replied that the Florida justices weren't writing new code but merely interpreting conflicting Florida statutes. (One sets a tight deadline for certification and the other allows hand recounts, which can take a long time.) And anyway, Tribe argued in his typically agile brief, the electoral-count law simply offers incentives to states who follow its provisions--but doesn't punish them if they don't.
The Justices sliced into both sides with razor-like questions. It's a fool's game to predict outcomes from the Justices' tone, but legal experts say if Gore had the intuitive edge going into Friday, the line of questioning tilted in Bush's favor. Overall, however, "Bush had the uphill battle," says the University of Chicago's Cass Sunstein, because he had to convince the Justices that they have a reason to insert themselves in a state matter. "We're looking for a federal issue," Republican-appointed Justice Anthony Kennedy stated Friday. Olson gave the Justices two: the 1887 law and Article II of the U.S. Constitution, which gives state legislators, not a state's judges, the authority to decide how members of the Electoral College will be chosen.
Olson's groping for a case to establish federal jurisdiction over the Florida election was a bit rich, since he is a leading member of the Federalist Society, the conservative group that is highly protective of the rights reserved to the states by the Constitution. But it was perhaps an even lustier irony to see Tribe, a liberal Democrat who has spent his career battling states'-rights advocates like Chief Justice William Rehnquist, use some key states'-rights decisions to bolster his brief that the Florida Supreme Court ruling should stand.
Ideology stamped many of the exchanges. Clinton appointee Ruth Bader Ginsburg chided Olson because, she said, he had "impugned a state supreme court...I mean, in case after case, we have said we owe the highest respect to what the state supreme court says is the state's law." That wasn't the only moment when Olson, a veteran of 13 arguments before the court, seemed rattled. What's worse, none of the Justices seemed willing to buy his creative theory that the Electoral Count Act had been violated.