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.
More generally, by insisting that the prosecutorial needs of the grand jury were more important than presidential confidentiality, the Court in United States v. Nixon planted a new and deeply destabilizing idea -- namely, that it is constitutionally unacceptable to rely on the president and the attorney general to make decisions about prosecuting high executive officials. By the same token, it legitimated the idea that impeachment and other political sanctions for executive wrongdoing are untrustworthy and insufficient. These ideas were then institutionalized in the law establishing the office of independent counsel, a law that the Court eventually and amazingly found not to be an unconstitutional intrusion into presidential control over the executive branch.
The Court's effort in Nixon to restore order to the political system and to enshrine the rule of law led, then, to the displacement of politics and the bureaucratization of the prosecutorial function. Political judgement was replaced by professionalized norms and a kind of legalistic perfectionism. Presidents ever since have been beset by accusations and investigations.
Possibly the worst of all worlds was achieved when these trends came to fruition in the earnest and conscientious person of Kenneth Starr. Precisely because he was entirely true to his statutory duties, his investigation derailed a presidency and his report triggered an impeachment. But precisely because Starr's statutory role was at its root predicated on distrust of both politics and impeachment, neither the country nor the Senate could summon the will to provide a full trial or to exercise high political judgment. The "trial" was a staged drama, and the debate on both sides was dominated by legalized arguments designed to permit senators to evade personal responsibility for their decisions.
In attempting to enforce the rule of law and to circumvent the uncertainties of political struggle, therefore, United States v. Nixon eventually resulted in an astonishing combination of distortions in our constitutional system: simultaneously, the depletion of the constitutional office of the presidency and the depletion of the process constitutionally mandated for keeping the president in line.
All this should be caution enough for those who today believe the Supreme Court has rescued us from the intellectual chaos unleashed by the Florida court. But there is a further possibility to consider as well. The abrupt and constitutionally innovative method used to remove President Nixon probably fueled resentments that eventually found their outlet in the sustained attacks on Clinton's presidency. In turn, the professionalization of the prosecutorial function that characterized the anti-Clinton investigations and the self-doubt that characterized his Senate trial almost certainly added to the resentments that keep Democrats struggling to undermine a Bush presidency even before it starts. In short, the recent chaos in Florida may itself be in part traceable to the rush to resolve the Nixon crisis through judicial action.
It is not, of course, inevitable that Bush v. Gore will put in motion a chain of destabilization in the way that United States v. Nixon did. But the imposition of equal protection standards on state ballot counting procedures has dizzying potential for generating lawsuits. If the Court had not ruled decisively against the recount, the legal mess in Florida would have been ended by the Florida legislature and Congress, just as the Nixon controversy would have been ended through the impeachment process.
In either case, in the long run a non-judicial solution might have led to both constitutional stability and political self-confidence. Now, we will never know.
Robert F. Nagel is a professor of law at the University of Colorado and the author of The Collapse of American Federalism, forthcoming from Oxford.