Renata Adler - After the Tall Timber

People forget things. Everyone forgets. I keep forgetting, for example, to mention that the Starr volumes are in their way a masterpiece that, quite apart from any prosecutorial or political matter, is full of fascinating incidents and characters. It ought to be published with type large enough to read.

2001

I.

NOT INFREQUENTLY, an event so radical that it alters everything appears for a time to have had no effect, or even not to have occurred. This is true in personal as in public life. A loss, a flood, a medical diagnosis, a rolling of tanks toward the statehouse — life goes on apparently as usual. Nothing is changed. It is particularly true of events that are irremediable. When there is nothing to be done, people go to work, eat their lunch, sleep, awaken to a vastly altered world, in ways that seem uncanny in their ordinariness. The decision of the Supreme Court in Bush v. Gore , in all three stages — accepting the case at all; reversing the judgment of the Florida State Supreme Court; above all, perhaps, granting a stay of the recount in Florida — gave rise to lots of comment. Outraged, gleeful, satisfied, resigned, the response seemed in almost every case to follow from the politics of the speaker. Republicans and “conservatives,” for the most part, approved. Democrats and “liberals” did not. The decision seemed to close the subject. Normal life resumed. George W. Bush was president and that was that.

George W. Bush may become a distinguished president. As to the Court’s “fundamental fairness” in the matter — its claim, as Justice Kennedy put it, on the people’s “trust”—the issue seems settled in a single question: if Al Gore had been the petitioner, with the same set of facts and arguments brought by Bush, would the Court have decided as it did? A rhetorical question, surely. Not a single justice would have agreed to hear the case.

The major issue was never really who would become president, or even the immense damage that the Rehnquist Five have done to the integrity of the Court. Its moral, intellectual, and legal authority had already diminished over a long period of poorly reasoned opinions expressed in unseemly and unjudicial — often supercilious and even sneering — words. What remained was its power. The Supreme Court has made mistakes before: Dred Scott, Plessy v. Ferguson, Korematsu , and so on. What is unprecedented in Bush v. Gore is the exercise of power — specifically allocated by the Constitution to the states and to Congress, and specifically not to the federal judiciary — in the expression of a profound and absolute conflict of interest. The Rehnquist Five want the Court to become a self-selecting body. In their treatment of Bush v. Gore , they did what they could to achieve that result.

The decision, per curiam , unsigned, but apparently written by Justice Kennedy, with a separate concurrence by Justices Rehnquist, Scalia, and Thomas, is a swamp. No matter where you look at it, you find something specious, mischaracterized, incoherent, internally inconsistent, false. Because it issues from the Supreme Court, however, legal scholars, lawyers, judges, congressmen, voters, and senators — above all, senators — are obliged to take it seriously. Its consequences are serious in ways that have nothing, or almost nothing, to do with the election of George W. Bush. He would have become president in any case. If the hand count had gone, as it would probably have gone, for Al Gore, the procedures established in our system would have yielded two slates of electors from the state of Florida: one for Gore, one (submitted by the Republican Florida legislature) for Bush. Congress would have had to choose. If Congress could not agree, the choice would revert to Florida to be made and certified by its executive, Governor Jeb Bush.

A disorderly process, certainly. It just happens that some of the processes in our democracy are disorderly. The votes in all of the counties in all of the fifty states, for example, are submitted and counted by widely varying means. In Florida, the Supreme Court found in this lack of uniformity a violation of the equal protection clause. Just this once, just in this case, just in this state, just on this day. The equal protection claim was specious anyway. Just who, if the counting had been permitted to continue, was being denied the equal protection of the law? A voter whose vote had already been tabulated by machine? But that voter might be a Bush voter or a Gore voter, and the votes being counted by hand, in every county, might be Bush votes or Gore votes. There might be disparate treatment, but there could be no systematic or intentional disparate treatment, favoring one candidate, or one voter, over another. The standard for counting votes, in Florida as in most other states, was “a clear indication of the intent of the voter.” This was not something that needed to be “divined” or “discerned.” A voter, even in chadless counties, who both checked and wrote in the name “Bush” or “Gore” on his ballot, had expressed his intent — in what was clearly a “legal vote.” The machine would not count it. A manual recount would. The Supreme Court decision would disallow it.

In fact, both the decision and the concurrence express disdain for the legal standard, in Florida and in so many other states. Why, Justice O’Connor asked irritably during the oral arguments, could these voters not follow “clear instructions”? The concurrence actually devotes many lines to this sort of argument: “Florida law cannot reasonably be thought to require the counting of improperly marked ballots …. Each precinct … provides instructions on how properly to cast a vote ”—as though voting were some form of test, which those aspiring to vote might pass or fail. The concurrence derides voters who cast “ballots that are not marked in the manner that these voting instructions explicitly and prominently specify”—in contrast to the machines, which perform “precisely in the manner designed.” (The machines performed, as it happened, poorly, and in some locations not at all.) Any other position, the concurrence goes on, in the diction that has become one of the Rehnquist Five’s defining characteristics, “is of course absurd.”

The difficulty remains: the standard for a “legal vote” is not an IQ test, or a test of classroom behavior that requires people to behave “properly” or to follow “instructions.” (The “instructions” in some counties, anyway, told the voter to make sure to “cast a vote on every page.” An unfortunate instruction: any voter who followed it would have produced an “overvote,” which the machine would disallow.) The accusatory, punitive, even contemptuous dismissal of voters whom the Court apparently deems too stupid to be allowed to vote at all (echoes here of the “literacy test” that used to accompany the poll tax in the South) dismisses as well what is, in Florida and most other states, the law: the test is, inescapably, the “intent of the voter.” It was according to this standard that the manual recount was proceeding when the Court brought it to a halt.