After the Tall Timber

by Renata Adler

  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.

  II.

  The trouble with a swamp of a decision is that even to deal with it is to be drawn into it. The four dissents politely and eloquently demolished every element of both the decision and the concurrence, to the degree those elements could be articulated. Almost all subsequent commentary, whether in article or book form, demolished them in more detail. But always in ways that seem contingent. Some distinguished commentators have suggested that, if the Bush presidency turns out well, the decision will be vindicated. Or they have pointed out that when the Supreme Court has made mistakes before, it has with time corrected them. Or even that the real precedent for this judicial aberration was Roe v. Wade, when the Court made a decision that might, they felt, have been better left to Congress or the states. But all of them, I think, understate the gravity of what has happened, and its possible consequences for at least a generation.

  To return for a moment to the decision—in particular, to Justice Scalia’s concurrence (in itself unusual) in the Supreme Court’s order, which abruptly halted the manual count by granting Bush’s application for a stay. It is often forgotten that, in addition to Florida’s state courts, lawyers for Bush had already brought their case before three federal courts (the U.S. District Courts of Orlando and Miami, and the U.S. Court of Appeals for the Eleventh Circuit Court in Atlanta), without success. A “stay” is a form of the ancient equitable remedy of injunction. Centuries ago, a petitioner might appeal directly to the king for a writ to “enjoin” his neighbor from doing something so drastic and destructive that it threatened the petitioner with “irreparable harm,” damage, in other words, that could not subsequently be undone or compensated. The very basis of a petition for such a writ was an emergency.

  A “stay”—and every application by petitioners Bush and Cheney in the federal courts to stop the manual recount was phrased in terms of “An Emergency Motion” or “An Emergency Application for a Stay”—is a drastic remedy. It is not to be granted unless the petitioner clearly establishes that he will suffer “irreparable injury” if the stay is denied; and that this threatened injury outweighs whatever damage the proposed injunction may cause the opposing party. He must also establish that granting a stay would not be adverse to the public interest.

  In his concurrence, Justice Scalia did not trouble for a moment to consider whether the threatened injury to Bush if the counting continued outweighed the damage to Gore if it did not. Scalia went straight to “irreparable harm.” If the manual count continued, he said, it “does in my view threaten irreparable harm to the petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”

  Well, there it is. The irreparable harm of “casting a cloud.” In the long and honorable tradition of injunctions and stays, this “irreparable injury” is a new one. Not just a cloud, but a cloud on “what he claims to be the legitimacy” of what he is claiming. By that standard, of course, every litigant in every case should be granted an injunction to halt the proceeding that offends him: the prosecutor casts a cloud on a claim of innocence; the civil plaintiff, a cloud on the defendant’s claim that he has already paid him. And of course vice versa, the defendants casting clouds on plaintiffs and prosecutors. The whole adversary system consists of a casting of clouds.

  Justice Scalia’s choice of words seems derived, perhaps intentionally, from the laws of property: “cloud on title”—with, perhaps, an overtone of libel. As though a vote were a form of speech, unprotected by the First Amendment, and the counting of votes were, in some sense, defamatory and damaging to the candidate’s reputation. But from tort claims to suits in antitrust, legal process virtually consists of this casting of clouds on claims of legitimacy. Perhaps all of them should be halted or enjoined.

  Whatever “cloud” Scalia had in mind—and it seems to be emotional (anxiety perhaps, or the state of being miffed)—the “harm” to Bush could not possibly be “irreparable,” since it was entirely within the power of the Court, or the manual count itself, to dispel it. If the count went for Bush, no cloud at all. If it went for Gore, the Court would have time to deem the results, if the Court so found, invalid. If the count went Gore’s way, and the Court found no fault with it, the process would have gone just as the Constitution and our political tradition provided that it should, as though the Court had never entered the process—where it did not, in any event, belong.

  Scalia’s argument for the stay obviously did not “clearly establish” any, let alone all four, of the requirements for the remedy. His finding of “irreparable harm” was so obviously unserious that even the per curiam did not bother with it. Here is how, retroactively, the per curiam justified its halting of the count: “Given the Court’s assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order. “

  “Given,” “probably being conducted,” “unconstitutional manner”: this is not langua
ge on which to base an order for a stay. It is not language on which to base a decision of any kind. The word “probably” alone defeats the argument: the courts have always held that no stay will issue if the harm is “speculative.” And the per curiam babbles vaguely on. The mandate of the Florida Supreme Court “is not well calculated to sustain the confidence that all citizens must have in the outcome of elections”; it “jeopardizes the legislative wish”; it “frustrates a legislative desire”; “a legislative wish . . . would counsel . . . against any construction that Congress might deem”—all these hypotheticals, wishes, frustrations, desires; what a “wish . . . would counsel . . . against,” what Congress “might deem.” The Court, when it speaks honorably, speaks in straight declaratory sentences. It speaks not of legislative wishes, but of commands; not of what Congress might deem, but of what it has said, enacted, or required.

  Here is Scalia, waffling, with a little joke based on Alice: “Count first, and rule upon legality afterwards, is not a recipe for producing elections that have the public acceptance democratic stability requires.” Recipe. The public acceptance democratic stability requires. Well calculated to sustain the confidence that all citizens must have in the outcome. All this is not just arguable, and certainly not before the Court. It is not the Court’s business. As it happens, count (or take any action which the law does not specifically forbid) first, and rule upon legality afterwards, is precisely the basis of our free and entrepreneurial system. It is one of the reasons constitutional law requires the Court to consider only specific “cases and controversies” (in contrast to abstract, hypothetical, or contingent questions) and prohibits the Court from issuing what are called “advisory opinions.” Halt the count, and rule upon legality beforehand, is presumably the “recipe” for producing the kind of elections (those “that have the public acceptance democratic stability requires”) that Scalia has in mind.

  But none of this, not a word or a concept, is the reasoning or the language of the law. And the vague, nattering—simultaneously brazen, timid, and evasive—quality of the decision culminates, of course, in this: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

  Look at that sentence a minute. What can it possibly mean? It apparently says that, for some reason, the decision in Bush v. Gore is not to be regarded as precedent for any other. But if this were so, it would undermine, at one stroke, the whole basis of American and Anglo-Saxon law. That each case has precedential value, must have precedential value, is the bedrock of our system of justice. Otherwise each case can be decided ad hoc, at the caprice of judges—non-elected, federal judges with lifelong tenure. The Constitution and even the Magna Carta would be superseded, the justices would be kings.

  It is, however, simply not in the power of the Court to determine that its decision has no precedential value. All decisions of the Court have such value, though it is hard to see how this particular travesty could serve as precedent for anything—or, for that matter, how it could be abandoned or overruled. But a special case, with no precedents and no future applications, is a case that, for ancient, profound, and lasting reasons, no court under our system is entitled to decide. No court has a right to say, This case is the law, crafted for one citizen, George W. Bush, and for him alone.

  Linda Greenhouse, in The New York Times two days after the decision, got it just right. “Among the most baffling aspects of the opinion,” she wrote, “was its simultaneous creation of a new equal protection right not to have ballots counted according to different standards and its disclaimer that this new constitutional principle would ever apply in another case.” The “new constitutional principle” never could apply in another case, because it does not and could not exist. It would disallow every election in the country—in the history of the country. The Platonic ideal of a voting machine that the chief justice seems to envision, “precisely designed” to create uniform standards nationwide, does not exist either. If it did, the Court would have no power to impose it. Nor would Congress. The notion of machines, “precisely designed” and even of “uniform standards nationwide,” raises the question of who, or what, designs, imposes, and oversees them. And the necessary centralization of power and order that this implies is precisely the way nations lose the power to vote.

  In Bush v. Gore, the citation of “precedents” that are not precedents, particularly civil rights cases (NAACP v. Alabama, for example, or Bouie v. City of Columbia, a 1964 case involving black sit-in demonstrators: “What we would do in the present case,” the concurrence says, “is precisely parallel”) conveys the degree of disingenuousness and spite that has so frequently characterized Rehnquist’s opinions. His tone in the majority has perhaps carried over from the years when he was most bitterly in dissent. Justice Ginsburg dealt with this sort of citation. The Florida Supreme Court, in its finding that “counting every legal vote” was the “overriding concern” of Florida’s Election Code, “surely should not be bracketed with state high courts of the Jim Crow South.” She dealt with the chief justice’s other “casual citations” as well, pointing out how few and inapposite they were.

  There is also, in the decision, an unusually high measure of hypocrisy, particularly in its affectation of helplessness: “None are more conscious of the vital limits on judicial authority than are the members of this Court . . . . However, it becomes our unsought responsibility to resolve . . . issues the judicial system has been forced to confront” and so forth. (In hearings before the House Appropriations Committee in March, Justice Kennedy, along with his remarks about “trust,” actually pointed out, in defense of the per curiam, that it was not the justices who filed the suit.) Apart from outright misrepresentations of the law, there are several gratuitously insulting comparisons between Katherine Harris and the Florida Supreme Court (“The Florida Supreme Court, although it must defer to the Secretary’s interpretations, . . . rejected her reasonable interpretation and embraced the peculiar one”) and myriad inconsistencies. The decision, which has just said that the state court “must defer to the Secretary’s interpretations,” suddenly pretends that it confronts “a state court with the power to assure uniformity” in vote counts—a “power” that the Florida Supreme Court manifestly lacks.

  And there are, at the core, some outright lies. Even the statement that seven justices of the court essentially agree, for example, and that “the only disagreement is as to the remedy,” is false. The two justices whom the majority tries to embrace, Souter and Breyer, begin their dissents with clear statements that the Court should not have taken the case, that it was wrong to grant a stay, and that the decision itself is wrong. That puts rather a lot of weight on the “only.” Souter and Breyer did try to salvage something from the debacle by giving the Florida Supreme Court another chance to meet even the most specious arguments of the per curiam. But the majority, with its own agenda, would not permit even this.

  It is not enough to say that this is the most lawless decision in the history of the Court. People have said, Well, somebody had to decide what the outcome of the election was, one way or the other. But somebody was deciding (or rather had decided) it: the voters. If the outcome remained in doubt, Congress would decide, or remit the choice to the Executive of the state. Others have said that we were approaching chaos, a constitutional crisis, that only the Supreme Court, in its robes and its wisdom, could resolve. But there was no constitutional crisis, except the one of the Supreme Court’s own creation. The events in Florida and the unfolding story were in fact a kind of political thriller. Voters were rather enjoying the suspense, when the Court, for its own reasons, jumped right in to stop the contest, so as to ensure that no one, ever, would find out the score.

  What does it matter? The system has always been strong enough to withstand mistakes of every kind, poor policies and choices, corrupt administrations, bad judgments on the part of elected and electorate alike, bad laws, unjust verdicts, rigg
ed elections, miscounted votes, and bad decisions by malign or misguided courts. In Chapters of Erie, still the best work of muckraking in our history, Charles F. Adams Jr. and Henry Adams devoted many chapters to the corruption of the courts. But there is something different about Bush v. Gore.

  III.

  It has now become clear that the recent case is only the latest and most extreme in a series of cases, Morrison v. Olson, Clinton v. Jones, and the initial remand to the Florida Supreme Court for “clarification.” And it was Antonin Scalia, in his dissent in Morrison v. Olson, who gave us the clearest indication of what has happened here and what is really at stake. Morrison v. Olson, decided in 1988, was the case in which the Supreme Court overruled the Court of Appeals for the District of Columbia, and upheld, as constitutional, the Ethics in Government Act of 1978, which established the office of independent counsel. Justices Brennan, Blackmun, and Marshall were still members of that Court, but Scalia’s was the sole dissent. His opinion was eloquent and well reasoned, and he alone was right. It was as though the justices, and everyone else who should have known better, were not paying attention.

  Scalia pointed out that, under the act, the independent counsel, or special prosecutor, would have virtually unlimited power—scope, discretion, funds, staff, tenure. He quoted at length from a great speech by Justice Robert Jackson, delivered in 1940, when he was still attorney general, about the temptations and the duties of any prosecutor, his vast powers and immense discretion, and the dangers of abusing them—specifically, by not “discovering the commission of a crime and then looking for the man who has committed it,” but “picking the man” and then “putting investigators to work, to pin some offense on him.” Any prosecutor, Jackson said, “stands a fair chance of finding at least a technical violation of some act on the part of almost anyone,” and then “the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious.”