[GreenYes] Wondering about US Supreme Court

[Ann Schneider <schneiderann@juno.com>]

Election decision still splits court

By Joan Biskupic, USA TODAY 

>From the website:     http://www.usatoday.com/hphoto.htm

Supreme court

01/22/2001 - Updated 08:32 AM ET 
 
WASHINGTON — Six weeks after an uneasy U.S. Supreme Court cleared the 
way for Republican George W. Bush to become president, the scars left 
on the nation's highest court by the Florida election case are 
evident.

The court's nine justices, uncomfortable with their role in such a 
high-stakes political contest, have remained tense with one another 
since the 5-4 ruling that shattered many Americans' image of the 
court as an institution above the partisan politicking that goes on 
across the street in Congress.

The court has been slow to get back into its routine caseload, and 
justices have been meeting with each other and their staffs to try to 
ease any lingering bitterness and to boost morale. The justices' 
clerks, the young and ambitious worker bees behind the court's white 
marble edifice, nevertheless are nursing grudges.

Meanwhile, the court has been bombarded with thousands of letters 
from angry Americans, some of whom have sent in their voter 
registration cards, suggesting that going to the polls in November 
was a waste of time. "For shame!" one letter said. Many messages to 
the justices have been sarcastic, others more menacing — including 
one with an illustration of a skull and crossbones.

More significantly, there are signs that the fallout from Bush vs. 
Gore has become a factor in at least one justice's yearnings for 
retirement. Sandra Day O'Connor has told people close to her that in 
her two decades on the court, she's never seen such anger over a 
case. O'Connor, more than any justice, has seemed disturbed by the 
public wrath directed at the court.

People who know the 70-year-old justice's personality and politics 
believe the election fallout — and a desire to spend more time with 
her husband, John O'Connor, as he faces health problems — could lead 
the nation's first woman justice to retire as soon as this summer, 
when the 2000-2001 term ends. John O'Connor, 71, a lawyer, had a 
heart pacemaker implanted in 1999 and has had more health problems 
since, say people close to the couple.

Justice O'Connor refuses to comment on such speculation and has gone 
about hiring staff for next year. If she were to leave the Supreme 
Court, it would give President Bush a chance to have an immediate 
impact on the court. Bush says he wants judges who will 
conservatively interpret the Constitution, and has held up Justices 
Antonin Scalia and Clarence Thomas as models.

Others in the new administration invoke a "no more David Souters" 
mantra, referring to the justice appointed by Bush's father in 1990. 
Souter is far more moderate than conservatives expected and regularly 
votes with the court's liberal wing. O'Connor often casts the 
deciding vote and, as a swing justice, crafts the court's rationale 
on some of the most hotly debated issues, including abortion rights, 
affirmative action and the line between federal and state power.

In the Florida case, she sided with the court's conservatives in 
supporting Bush's argument and blocking Democrat Al Gore's push for 
further ballot recounts. Sources say the decision was particularly 
uncomfortable for O'Connor, in part because she, along with Chief 
Justice William Rehnquist, 76, stood as potential beneficiaries of a 
Bush election victory. Both have considered retirement, and it's 
accepted among court analysts that the two justices, both 
Republicans, would prefer that a GOP president name their successors.

Rehnquist's distaste for the scenario that put the election in his 
court's hands was apparent during an address on Jan. 1, when he 
departed from protocol by mentioning a specific case that had come 
before the court — the Florida recount dispute. He said he hopes such 
a case never again lands at the court.

"This presidential election tested our constitutional system in ways 
it had never been tested before," said Rehnquist, who joined O'Connor 
in the majority. He said he hopes such involvement "will seldom, if 
ever, be necessary in the future."

The Florida case cast an unwanted spotlight on a court that is 
unaccustomed to significant public attention, much less harsh 
criticism. It is an insular place of strict decorum and deliberate 
mystery. Justices rarely agree to be quoted, and their clerks are 
pledged to secrecy.

But an examination of the court's activities and interviews with more 
than two dozen people close to the justices reveal new details about 
the fallout from the Florida ruling, and about the court's struggle 
during the second week of December to reach a decision as an anxious 
nation waited.

The roots of discord

On Dec. 12, a flurry of holiday cheer in the building masked the 
wrenching negotiations behind the scenes over the Florida case. As a 
team of workers put colored lights on the court's 22-foot Christmas 
tree in the Great Hall, the nine justices were in their chambers, 
wrangling over the law.

At the start, it didn't seem so hard. In the early deliberations the 
five conservative justices who on Dec. 9 had halted the recounts 
ordered by the Florida Supreme Court — O'Connor, Rehnquist, Scalia, 
Thomas and Anthony Kennedy — seemed to be on the same page. In fact, 
Rehnquist initially believed a decision would come on Dec. 11, the 
day the court heard oral arguments in the historic case. The chief 
kept the courthouse staff on duty late that day.

But shortly after the staff ordered Chinese carryout, it was told to 
go home. One factor that complicated things was a decision by the 
Florida Supreme Court that evening in which the state court clarified 
its grounds for intervening in the ballot controversy. That made it 
more difficult for the justices to assert that the state panel had 
improperly set new rules of state law.

The five conservative justices fractured into essentially two camps: 
Rehnquist, Scalia and Thomas, who continued to believe the Florida 
court had acted illegally and infringed on legislative power; and 
O'Connor and Kennedy, who agreed that any recounting would be 
improper but were turning to alternative grounds, the different 
standards that Florida counties had been using for recounts. They 
believed this could violate the Constitution's guarantee of equal 
protection under the law.

Meanwhile, those two justices were being pressured by two of the 
court's four liberals — Souter and Stephen Breyer — to adopt a 
compromise that would acknowledge the lack of standards for recounts 
but permit a review of the disputed ballots to continue under new 
rules.

Kennedy, who was especially worried about the various county 
standards for determining voter intent, took on the responsibility 
for writing much of what became the court's unsigned decision. But he 
has a slow, deliberate style that works against him when under 
pressure. Court sources say that he at times simply froze.

In the Florida case, crafting a constitutional principle that spoke 
for any majority would have been difficult for the swiftest writer. 
What finally was released the night of Dec. 12 — two hours before a 
midnight deadline that would have raised the possibility of 
congressional intervention — was a thin mix of precedent and legal 
reasoning. The court's decision stopping the recounts was a novel 
interpretation of the Constitution's guarantee of equal protection 
that included a declaration that the ruling shouldn't affect other 
cases.

Agreeing to the opinion were Rehnquist, O'Connor, Kennedy, Scalia and 
Thomas — all ideological, if not political, conservatives. The 
liberals — Souter, Breyer, John Paul Stevens and Ruth Bader Ginsburg —
 dissented.

Souter and Breyer, who shared concerns about a statewide standard, 
had fought hard for a compromise. They wanted to avoid a ruling that 
would seem little more than a political calculation. More 
importantly, they believed that Florida's disputed ballots had to be 
tallied to make the election results credible.

They tried to identify with the concerns of O'Connor and Kennedy. But 
as time ran out, O'Connor and Kennedy said there was no practical way 
to swiftly set new standards. Rebuffed, Breyer and Souter left the 
courthouse in frustration.

The two other dissenters were no less unhappy. Stevens said the 
decision wounded the nation and would undercut its respect for 
judges. In Ginsburg's dissenting statement, she dropped the 
customary "respectfully," from her closing words and said only, "I 
dissent."

Repairing the damage

There is a philosophy among the justices that rehashing a case or 
holding a grudge is useless and counterproductive. As lifetime 
appointees, they must return to each other's company. The justices 
are known for saying that they decide a case and move on, and in fact 
Thomas said shortly after the Florida ruling that the court was doing 
just that.

But this case — which exposed the court to public outrage it hadn't 
faced in decades — wasn't easily filed away.

While many Americans supported the ruling and wanted the recount 
debacle over, "a lot of the public is looking at this as a bad call 
in the seventh game of the World Series," Stanford University law 
professor George Fisher says. "It's not surprising to have unusual 
tensions over this case."

When the justices returned to the bench this month for the first 
round of oral arguments since the ruling, they seemed both wearier 
and testier. O'Connor, who often snaps at the lawyers who come before 
the court, at times has been visibly impatient with her fellow 
justices. In one citizenship case, she implied that her colleagues' 
questions were inconsequential and, in a voice dripping with 
annoyance, told the lawyer at the lectern, "I'm concerned that your 
time will expire before you've addressed either point that may be 
critical here."

The justices have been slower to resolve cases that are pending from 
oral arguments in the fall. So far this term, the court has issued 
only about half the number of major rulings it usually puts out by 
the four-week winter recess, which begins today. This will be the 
first time in at least a decade that on the last court day before the 
recess, the justices have no decisions ready to hand down.

Meanwhile, signs abound that some justices are trying to help the 
healing process.

O'Connor and Breyer have lunched in private, and individual justices 
have met with their young clerks to try to keep them from becoming 
disillusioned by the fallout from the Florida case. Sources say that 
some clerks for the liberal justices are dismayed at the court's role 
in the case, while clerks for conservative justices believe the 
ruling was one of integrity and are angered by nationwide criticism 
of the court.

That criticism began close to home, with the resignations of a few 
members of the Supreme Court bar, the group whose members are 
eligible to argue before the justices. Although such a move is 
largely symbolic — most of the tens of thousands of lawyers qualified 
to practice before the court never actually get the opportunity — 
court officials cannot recall lawyers ever protesting a ruling in 
such a way.

Beyond Washington, the court's ruling has been skewered by some legal 
analysts.

A refrain that has become popular among dissatisfied law professors 
is, "What will I tell my students?" Yale University law professor 
Akhil Amar answered that in an opinion piece in the Los Angeles 
Times: "It will be my painful duty to say, 'Put not your trust in 
judges.' "

Michael Greve of the American Enterprise Institute wrote in the 
conservative Weekly Standard, "It would be silly to deny that 
partisan considerations influenced the justices' rulings."

Court observers say that while certain justices have been barraged by 
mail after controversial rulings — Harry Blackmun began receiving 
hate letters in 1973 after writing the opinion in Roe v. Wade that 
established abortion rights — it is rare that the entire court is 
swamped with letters. In the days after the Florida ruling, thousands 
of letters poured into the court.

Many voters who wrote the court accused the justices in the majority —
 all GOP appointees — of playing politics. "I called them clowns in 
robes," says Grandison Bartlett, 74, a retired business manager in 
Forked River, N.J. "I figured it was payback time for Republicans."

But court insiders say the reactions that have most shaken the 
justices have come from Americans who have questioned the justices' 
personal motives.

One widely circulated tale involving O'Connor has it that at an 
election night party Nov. 7, O'Connor became visibly upset when 
network anchors first said Gore had won the critical state of 
Florida. Her husband told others at the party his wife was upset 
because the couple wanted to retire and that she preferred a GOP 
president name her successor. USA TODAY sources confirmed much of the 
story, first reported in the Wall Street Journal and Newsweek, but 
some suggest O'Connor was angry that the election was being called 
for Gore while West Coast polls were still open. Yet, her husband's 
comments fueled speculation that O'Connor is mulling retirement.

"She is more central to the court than anyone," says University of 
Chicago law professor Dennis Hutchinson. "She is the one who has 
defined the standard for abortion rights, for affirmative action. If 
she were to step down, it would be the most important appointment (to 
the court) in nearly 15 years."