Can the Court Recover?

In the end, it took the U.S. Supreme Court and its vast store of institutional prestige to end our 36-day national electoral nightmare. When people like Katherine Harris, the Florida legislature and House majority whip Tom DeLay talked about ending the recounts and declaring Bush the winner, they were widely attacked as mere political partisans. But when five Supreme Court Justices did very much the same thing, Al Gore started drafting his concession speech.

The court's decision--a tangle of six different majority, concurring and dissenting opinions--is now every bit as controversial as the election it resolved. To its defenders, the court played precisely the role the Founding Fathers intended: in a time of crisis, the Justices stepped in to ensure that the Constitution, not the political passions of the day, prevailed. The court's decisive ruling forestalled the nightmare scenarios that TV talking heads had been gleefully spinning. Rival sets of Florida electors. A tie vote in Congress. Constitutional deadlock.

But a sizable number of critics, from law professors to some of the court's own members, have attacked the ruling as antidemocratic and politically motivated. Many say they were pained to see a court that once distinguished itself by removing barriers to voting--including racial prohibitions, poll taxes and literacy tests--stand in the way of counting valid votes. And Justice John Paul Stevens spoke for disillusioned observers everywhere when he declared in dissent that the decision to stop the vote count and declare Bush the winner "can only lend credence to the most cynical appraisal of the work of judges throughout the land."

The Supreme Court's ruling in Bush v. Gore will no doubt be taught in law schools and high school civics classes for as long as there is a Supreme Court. It is too soon to know the ultimate verdict of history. But it is not too early to start drawing a few lessons from the decision and the court that delivered it. Among them:

THE U.S. SUPREME COURT IS AS DIVIDED AS THE NATION

There's always considerable pressure on the Supreme Court, in very important cases, to rise above--or at least appear to rise above--political divisions. In Brown v. Board of Education, the 1954 case striking down racial segregation in public schools, Chief Justice Earl Warren worked mightily behind the scenes to extract a unanimous decision. When the Supreme Court first heard the Florida election dispute, it issued a ruling in a 9-0 vote vacating the Florida Supreme Court's first decision and directed the Florida justices to provide a clearer explanation for their reasoning. And when the Justices took up the issue again, some court watchers were predicting that Chief Justice William Rehnquist would do everything possible to craft a Solomonic decision that again brought liberal and conservative Justices together.