The Supreme Court's decision to elect George W. Bush is a travesty. The best that can be said about it is that it might be marginally better for them to have the last word than for the panting Florida Legislature or the possessed House of Representatives.
The majority opinion is all trees, a catalogue of technical and legal problems that makes it impossible for the voters of Florida to decide who won. The minority concentrated on the forest, the universal suffrage that is the bedrock of democracy. The majority hardly makes a pretense of seeking fairness or living up to the motto inscribed over its facade, "Equal Justice Under Law." It reinforces the widespread opinion that holds that Vice President Gore won Florida, or why else would the Bush forces have spent the last five weeks doing everything short of burning the ballots to stop a recount?
The majority, led by Justice Antonin Scalia, who might as well have been wearing a Bush button on his robes, did acknowledge, in a subordinate clause, that yes, the Constitution seems designed to "leave the selection of the President to the people through their legislatures"; all they did was to assume an "an unsought responsibility."
That is not so. They became involved on Nov. 24 through their own folly. They received the Bush complaint that the Florida Supreme Court had imperiled the Republic by ordering the recount of some 60,000 "undercounted" ballots. The U.S. Supremes stopped the recount, and instructed the Floridians to "clarify" their decision.
The Florida Supreme Court had confused their betters on the high bench by claiming that the right to vote is the supreme and sacred right for every citizen of a democracy. Scalia had taken satisfaction in reminding the country that the Constitution does not guarantee the right to vote for president, but only the chance to choose the state legislators who will pick the members of the electoral college.
Once they got into it, the justices realized they really didn't have the "federal question" that would justify their meddling. But the majority fell right into the Bush strategy of delaying until the new deadline was almost upon them. Then, in their late-night decision, they groaned, "Oh, dear, where did the time go?"
The court had institutional reasons to jump in. They could look good where everyone else had failed. But there were individual motivations, well known, which should have warned them away from politicking: Chief Justice William H. Rehnquist would retire if he could be sure of a Republican successor. Justice Scalia would like to become chief justice.
At Monday's hearings, Justice Sandra Day O'Connor, who often follows Scalia, complained that the Florida Supreme Court had dissed the real Supremes by failing to answer a question that had been put to them when the case was sent back for "clarification." It was pretty clear from the opinion, a belated reply from Tallahassee, that the Florida bench had followed its own statutes, which make a big deal about having everybody vote and every vote counted. Justice O'Connor sounded petulant: "It just seemed to . . . assume that all those changes in deadlines were just fine, and they'd go ahead and adhere to them."
At Monday's hearing, the divided court resumed its search for the elusive "federal question." Finally, the "equal protection" clause loomed up in the murk. Due to the bizarre quality of Florida's election supervision, ballots with dimpled chads were counted in some counties and were not in others. It seemed a promising line of questioning except it could open matters up to a national recount.
It was left to Justice John Paul Stevens, a native of Chicago, a city that, more than most, cherishes political reality, to sort out the casualties of a decision that tells Americans they have a situation they can do nothing about. Usually, "can't" is a fighting word. We went west, went to the moon. Can't count in time? Has Scalia ever seen a town on the Mississippi that when the river rises slings sandbags around the clock?
The decision, says Mario Cuomo, who was once offered a place on the court, was "a calamity." It's also an insult.
But Rehnquist, Anthony M. Kennedy, O'Connor, Scalia and his silent shadow, Clarence Thomas, would feel easier with another Bush picking their colleagues.
Stevens gave a stinging summary: "Although we may never know with complete certainty the identify of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."
© 2000 The Washington Post