Disorder in the Courts: Judicial Rollercoaster: Bush vs. Gore Is Headed Back to the U.S. Supreme Court. Will the Fierce Legal Battles Finally Get Us a New President and End the Chaos-Or Ignite a Constitutional Crisis?

Article excerpt

George W. Bush got his bad news first--last Friday in the living room of the governor's mansion. He watched in disbelief as the tube delivered the legal bulletin: the Florida State Supreme Court was ordering a full manual recount of 45,000 "undervotes"--a process that could erase his 537-vote lead in Florida and give the state, and the presidency, to Al Gore. That night, Bush's lawyers raced to the U.S. Supreme Court, asking them to stay the action. Their client, meanwhile, retreated to his ranch in Crawford, Texas, to jog, clear cedar brush from the land and play host to a Time magazine editor measuring him for "Man of the Year." Bush was at the wheel of a Chevy Suburban Saturday afternoon when the mobile phone rang with the good news. It was Don Evans, his campaign chairman and longtime oilfield friend, calling in from Tallahassee. "The Supreme Court just granted you a stay," a gleeful Evans told him. "That's great news!" the governor said.

Indeed, it was for Bush--and it marked the end of an equally wild ride, but in the opposite direction, for Al Gore. He got his good news first--in the sunlit library of the vice president's mansion. He reacted to the Florida court's ruling by inviting guests in for champagne and by joining Joe and Hadassah Lieberman for a Jewish welcome-the-Sabbath ceremony. (They'd brought candles and challah for the occasion.) Later, Gore chairman Bill Daley and other aides got a standing ovation at the Palm Restaurant. "We live for today!" said a giddy aide, Tom Nides. The party balloons burst the next afternoon. Gore was at the mansion, preparing to play host to the governor of Alabama and his wife, when he got the bad news about the U.S. Supreme Court from legal adviser Ron Klain. Gore canceled dinner and hunkered down to make calls. "I've been counted out before," he told Klain. "Let's stay focused." But it was hard to rally the troops. Nides summarized the Gore team's new position-- "f---ed"--and its game plan: "Hold our breath, polish our resumes."

A month after election night, Bush and Gore were reliving its head-spinning gyrations. This time it wasn't the votes that buffeted them, but legal rulings that the votes provoked. An election between two men had metastasized into a proxy war between two courts, themselves split, in Tallahassee and Washington. In a divided country, soon to be led by a divided Congress and a potentially enfeebled president, the courts had been invited to take over a national election. They had done so. And why not? Since the 1960s, Americans have increasingly come to feel that every public wrong has a legal redress, every right a writ to protect it, every unfairness a cure from the equitable powers of justice.

The courts' intervention might produce a fragile legal peace--or an election careering toward an even more chaotic denouement in Congress next January. The risk was real: a full-scale constitutional crisis with competing slates of electors, warring lawyers and, finally, the spectacle of a president's being chosen not in the country but on Capitol Hill for the first time in more than a century.

And even if the Supreme Court settled the matter quickly (by flatly overruling the Florida court), much damage had been done. The courts' intervention exposed the raw undercurrent of politics that runs beneath them. Their actions sullied the naive but necessary faith in their Olympian neutrality. In pulling the legal fire alarm, we may have set the fire station ablaze--with high courts just another set of institutions cuffed around in the hardball culture. As for electoral politics, last week's events may lead to a season of rancor that will make last fall's long campaign look tame.

Though the justices wear sober black robes, their moves last week were center stage in a political circus. In Tallahassee, the appearance of the court clerk on the courthouse steps drew a huge throng of media and demonstrators. When he announced that the court, by a 4-3 vote, had ordered the hand recount, cheers echoed throughout the plaza--and furious Republicans immediately denounced the court as a hive of partisan Democrats bent on electoral theft. …