Dialogue: Judiciary the prime loser in presidential squabble

ANNA ADAMS* says the United States Supreme Court's philosophies and precedents were abandoned, and its reputation tarnished, as the presidential drama unravelled.

When the news broke that the United States Supreme Court had finally brought down the curtain on America's presidential drama, the decision provoked an outpouring of indignation and disappointment. Overwhelmed by the moment, the Supreme Court seemed to have forgotten the duties that come with the robes.

As scholars and commentators digested the 5-4 majority decision, and found it nakedly and unacceptably political, a tide of criticism swelled.

Even the temperate New York Times expressed concern that the ruling came at considerable cost to the public trust and the tradition of fair elections.

New Zealand observers may wonder what the brouhaha was about. Did Americans not expect that the politically appointed justices would side with their party when the chips were down?

The answer, perhaps surprisingly, was no. Moreover, that is not what happened. Two of the four justices who opposed the majority - including the author of the most bitter dissenting judgment - were Republicans, and one was even appointed by George W. Bush's father.

The problem with the decision has more to do with the startling reasoning employed by the majority than the mere ideological lineup. The gist of the issue is that, to reach their result, the majority justices seemed to abandon the legal philosophies and precedents that they - and many of the dissenters - had spent decades constructing.

The Bush v Gore move was essentially a three-step.

First, the conservative justices that had made their names as champions of judicial restraint and a state's right to interpret its own law suddenly dived into Florida election law and found that the Florida Supreme Court had, in constitutional terms, veered off the planet.

Second, the majority justices raised eyebrows by deciding that the Florida recounting standard - which notoriously focused on voter intent - violated the US constitutional guarantee of equal protection of the laws.

But many of these same judges' earlier decisions had denigrated the equal protection right as fuzzy and out of line with the strict wording used by the constitution's 18th-century drafters.

Third, the denouement of the majority's decision was their order to the Florida court.

Because there wasn't enough time before the December 12 congressional deadline to fix the equal-protection problems, they simply barred the Florida court from conducting the recount.

As the obviously distressed dissenting judges pointed out, this left Florida voters disenfranchised in a manner more serious than any variations in the recounting of ballots could have produced.

The Florida court seemed to have been snookered. It had got a full recount going on December 9, scheduled to be finished by the next day, when it was halted by the conservative majority of the Supreme Court. And then on December 12 it was told by that same majority that it was out of time.

What to make of all this? The unfortunate conclusion, reached by the dissenting justices and many legal scholars, was that the majority's U-turn on its usual legal mantra and embarrassingly loose reasoning could be explained in only one way. Politics.

This impression was cemented by the fact that the majority judges were not keen to live with the potentially explosive application of their reasoning to future cases.

Instead, they stated: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

The morning-after cartoons lampooning the majority justices as caught in their political underwear were entertaining, but in reality the situation is serious. Behaviour like this by courts creates major questions about the legitimate exercise of public power.

For Bush, the legitimacy issue may be temporary. His arrival at the Oval Office courtesy of a court will cast a pall over his presidency, but at least he will face an election in 2004. The public will have its chance to re-evaluate him then.

For the court, the legitimacy problem could be more enduring. As in New Zealand, federal justices - including those on the Supreme Court - are not elected and are heavily protected from dismissal by the government.

This is no constitutional accident. Democratic societies generally don't want the rough justice meted out in politics to prevail in every dispute.

An independent judiciary is a deliberate attempt to create an arm of government that is more measured, reflective and less self-interested than the politicians in the legislature and the executive branches could ever be.

Unelected judges are supposed to be sufficiently isolated from the latest public passions to make decisions motivated by stable principle and sustained reasoning.

In general, judges take this commitment extremely seriously, even in personally unpalatable circumstances.

This is not to say that courts cannot make bold decisions. The US Supreme Court is famous for its socially momentous decisions on racial desegregation in the South and abortion rights.

New Zealand, too, had its share of such decisions in the late 1980s and early 1990s, when the Court of Appeal recognised the constitutional significance of the Treaty of Waitangi and the Bill of Rights Act.

But even these bold cases were based on principles, albeit nascent. And as principled decisions, they were argued over, challenged by litigants and revised by the courts as time went on, the way the law ought to develop.

But Bush v Gore is not such a decision. Instead of building on past thinking, it abandons it. And instead of looking forward to application of its ideas, it tries to restrict that application to present circumstances.

Overall, it seems that the reasoning was tailor-made for a Democratic challenge to a shaky Republican claim on the White House.

The tragedy of the decision is that not only the 2000 presidency was at stake. The ability of a national court, whether in New Zealand or the US, to progressively shape the law is critically dependent on the court having the public's confidence.

Why else would the public accept what are often contentious or costly decisions made by a set of life-appointed judges?

As one of the minority Supreme Court justices wrote, confidence in the court is a public treasure, and the decision in Bush v Gore has clearly done damage. In a poll conducted the day after the decision, more than half of those surveyed felt the court had become too political rather than maintaining an objective balance.

The consequences of this lost confidence are yet to be seen. But in the meantime, many spectators are left astounded at the majority justices' hubris.

In an election where political parties fought tooth and nail to count single votes in Florida, it seems repugnant that the election was ultimately decided by one judge's vote, untethered from usual principles and apparently according to political preference.

As the Republican Justice Stevens wrote in an emotional dissent that is likely to define the Bush v Gore case: "Although we may never know with complete certainty the identity 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."

* Anna Adams, a New Zealand solicitor specialising in constitutional law, practises litigation in New York.


Herald Online feature: Election aftermath

Transcript: The US Supreme Court decision

Transcript: The US Supreme Court oral arguments

Diary of a democracy in trouble

The US Electoral College

Florida Dept. of State Division of Elections

Supreme Court of Florida

Supreme Court of the United States

Democrats and Republicans wage war online