The Magazine

From U.S. v. Nixon to Bush v. Gore

Political problems deserve political solutions

Dec 25, 2000, Vol. 6, No. 15 • By ROBERT F. NAGEL
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NOW THAT THE U.S. Supreme Court has effectively stopped the Florida recount, it is natural to believe that the justices have once again saved us from political and legal disaster. There is no doubt that the Florida Supreme Court's stunning decision to order manual recounts across Florida created the specter, as Chief Justice Wells said in dissent, of chaos. What the Florida decision did was demonstrate how legal argumentation in America has metastasized. When even the plainest meaning is subject to the relentless pressure exerted by all those urgent words streaming from the mouths of lawyers, our institutions are exposed to something close to intellectual anarchy.

To get a clear view of the nature of that chaos, recall one detail from the Florida court's work. In its first decision, the court said that Florida secretary of state Katherine Harris had abused her discretion by enforcing the seven-day statutory deadline for certifying the vote, and it instructed her to observe a twelve-day deadline. In its second decision, a four-justice majority of the same court concluded that the secretary had subsequently abused her discretion by enforcing the court's own twelve-day deadline.

If words like "seven" and "twelve" cannot hold, nothing can hold, and uncertainty stretches away to the horizon. Touchingly oblivious to the anarchical implications of its own opinion, the Florida court simply assumed that the manual recount could proceed in an orderly and timely fashion. In fact, of course, everything was thrown up in the air. Before the U.S. Supreme Court stayed the recount, lawyers were arguing before a trial judge about the procedures for conducting the recounts. Those determinations might have been appealed. The recounted vote itself might have been challenged, and that determination might have been appealed. The Florida legislature could have nullified the recount by statute, but that statute could have led to a lawsuit and an appeal. In counting the electoral votes, Congress eventually would have resolved the uncertainty, but if words do not hold, the congressional count could be questioned in court and any decision appealed, and so on until it is time for another presidential election.

It is understandable, then, that many now feel relief that the U.S. Supreme Court has reestablished order by permanently halting the recount. But there is irony, and eventually perhaps futility, in using the lawyers who sit on the Supreme Court to stabilize what lawyers and lower courts have destabilized. After all, in recent decades the Court itself has done much to establish the very judicial role that the four Florida justices embraced so heedlessly. It announced a constitutional right to abortion when not a word can be found in the Constitution on that subject. It converted into an authorization for racial preferences a federal statute whose plain words and ascertainable purpose prohibited racial discrimination. Through "interpretation," it grafted a complicated sexual harassment code onto a federal law that was silent on that specific subject. Indeed, the modern Supreme Court's basic role has been to alter established legal understandings and to open up vast panoramas of adversarial argument.

Nevertheless, the American impulse to trust the Court as the embodiment of the rule of law is deep and implacable. And, of course, the Court sometimes appears to fulfill that expectation in grand style. Consider the last time the Supreme Court intervened when the stakes were as great as they are now. The year was 1974 and the case was United States v. Nixon, the famous Watergate tapes case. Then, as now, the legitimacy of the office of the presidency seemed in peril, and chaos seemed possible. The Court's hurried decision and President Nixon's subsequent resignation truncated the impeachment process, just as a definitive ruling now has cut off political action by the Florida legislature and the Congress. The public understandably saw the Nixon case as reestablishing political order and the rule of law.

The long-term consequences of Nixon, however, are sobering. For one thing, the decision broke down the long-established practice that permitted the president to keep Oval Office communications confidential. In exposing the president to the power of a grand jury, it led to the later decision that exposed President Clinton (and, of course, future presidents as well) to the power of trial judges and even private attorneys seeking information in civil cases.