Court Braces for a Barrage of Criticism

By Murray, Frank J. | The Washington Times (Washington, DC), December 14, 2000 | Go to article overview

Court Braces for a Barrage of Criticism


Murray, Frank J., The Washington Times (Washington, DC)


The Supreme Court has weathered its critics - and cries for impeachment - since the founding of the Republic, and the majority in the Bush v. Gore ruling already is girding against cries of hypocrisy and partisanship.

The case of the 2000 presidential election, by which the Rehnquist court always will be measured, differs from earlier hot-button issues because the deepest digs came from two justices, John Paul Stevens and Ruth Bader Ginsburg.

"Instead of respecting the state high court's province to say what the state's Election Code means, the chief justice maintains that Florida's Supreme Court has veered so far from the ordinary practice of judicial review that what it did cannot properly be called judging," said Justice Ginsburg.

There's also incoming flak from Congress, political activists, talk-show hosts and sign makers everywhere.

"The Supreme Court threatens its own credibility as well as the principle that elections should be determined by the voters," said Ralph G. Neas, president of People for the American Way, who worked for Mr. Gore's election.

Historically, this is a court that settled an argument with President John Adams simply by declaring its own authority. It has flourished despite attacks over upholding slavery, forbidding prayer in the schools, opening every state to abortion, upholding laws against private sodomy by homosexuals and forcing disclosure of tapes that led President Nixon to resign his office.

"They never did impeach Earl Warren, did they?" one Supreme Court watcher said yesterday.

After meeting his self-imposed deadline of deciding the battle by Tuesday midnight, Chief Justice William H. Rehnquist's first priorities were defending the credibility of the majority ruling and arguing the decision reinforced federalism instead of diminishing it.

"This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures," the chief justice wrote in a concurring opinion that essentially said the Florida Supreme Court unconstitutionally encroached on legislative powers.

Justices Antonin Scalia and Clarence Thomas joined that opinion, which, like all four dissenting opinions, is explanatory and not a legal precedent in other cases.

The Center for Local Sovereignty, a Washington-based interest group that opposed any hearing by the high court, was pleasantly surprised by its affirmation of a state legislature's latitude in deciding to appoint electors.

"There is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated," the court said, adopting the words of a U.S. Senate report originally quoted in the 1892 McPherson vs. Blacker Supreme Court decision.

Yesterday, Justice Thomas sought to minimize any role of politics in the outcome or the appearance that the Bush v. Gore case engendered bitterness.

"I can still say, after the events of this week and all the turmoil, that in nine-plus years here, I've yet to hear the first unkind word," he said at an annual C-SPAN forum for high school students, broadcast from a Supreme Court conference room.

The unusual reach of the decision was as striking to a longtime Rehnquist fan, appellate lawyer Charles J. Cooper, as it was to dissenters who berated it in vivid terms.

"They called it absurd. I have no doubt that is unprecedented," said Mr. Cooper. "That debate within the opinions is quite seismic and quite meaningful because the concurring trio has argued that any interpretation of a state's legislative provisions for the appointment of presidential electors is a federal question."

Justice Ginsburg suggested the trio showed a somewhat flexible devotion to federalism principles while Justice Stevens said they delivered a damaging blow to public trust in the courts.

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