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| LEGAL ANALYSIS | |
 December 13, 2000  |
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Two law professors analyze the Supreme Court's decision ending the presidential election struggle. Note: This segment aired before the national addresses by Al Gore and George W. Bush.
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PAM KARLAN: Well, I think the fundamental split that made a unanimous ruling impossible was that five justices wanted to end the process last night and have it over with and four justices didn't and there is no way to reconcile that kind of a conflict. MARGARET WARNER: Explain that a little more. PAM KARLAN: Well, the majority held that the equal protection clause had been violated here and then held that it was going to stop the recount as a result. You know, there is something a little silly about this or a little troubling, and that is having held that the right to vote is a fundamental right, the Supreme Court then essentially did exactly what it had criticized Florida for doing, which is having held that the right was fundamental it now denied the right to have many voters' votes ever counted. Having held that the right was fundamental and that the political process should act to protect that right, it then stepped on the other branches and criticized them. It made new law. It came up with a rule that it itself said was good for this case perhaps and good for this case only. And I think there was no way the majority having said that that the dissenters who either didn't think there was a problem with the recount in the first place or thought Florida should be given the ability to try to conduct a constitutional recount could go along with that. So I think that once a majority decided it wanted to end the case last night, there was nothing that could have been done to reach a unanimous opinion. |
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| A divided court? | ||||||||||||||||||||
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MARGARET WARNER: John Yoo, do you agree that was the rub? I mean, you had Souter and Breyer agreeing there was a problem with the recount but they wanted to try again.
MARGARET WARNER: But are you surprised as Pam Karlan is that that December 12 deadline which isn't really a deadline in law, I mean it's a wished for deadline, trumps? Were you surprised they found it trumped the right of every person to have their vote counted or recounted or looked at manually? JOHN YOO: Well, I was a little surprised that it came in at the end of the per curiam opinion in the way that it did because the chief justice's concurrence lays out much of the foundation and the reasoning as to why the December 12 date actually became important. It actually is not important because of the federal law because if Congress has promised to count as valid electoral votes that are finally chosen by December 12. Instead, according to the Supreme Court, it came in through state law. It's important because the Florida legislature wanted to incorporate it into its own electoral laws -- I have to admit I found that a little surprising because the whole opinion of the per curiam court is about the equal protection clause but if this was just an equal protection clause case, we would still be watching the litigation go on in the lower courts
PAM KARLAN: Well, I think he is right to some extent, which is as Justice Ginsburg pointed out in her dissent, the last time the U.S. Supreme Court really reached in to slap the face of a state Supreme Court quite the way it did here, decide there is a violation and then not send the case back so that the state court can fix it was in the 1960s in the Jim Crowe South. And those are actually the cases that the chief justice in his concurrence sites -- cases where you couldn't trust the state courts because the state courts were deeply racist. And to use those cases as the justification for saying you couldn't rely on the impartiality of the Florida courts here or you couldn't trust their interpretation of Florida law really does cast serious doubt on the state courts. And that is quite contrary for the justices in the majority here because in a whole raining of issues they are prepared to let the state courts decide even very fundamental issues. They really want to get the federal courts, for example, completely out of the business of making sure that the death penalty is implemented fairly. They trust state courts there, and so there is something odd and contradictory and troubling about their suggesting now that state courts really aren't worthy of trust when it comes to important constitutional issues. |
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| Worried about the politicization | ||||||||||||||||||||
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MARGARET WARNER: John Yoo, what did you make of that comment of Justice Stevens'?
MARGARET WARNER: Let me bring up John Yoo, staying with you a minute. Justice Breyer also joined - there were critics inside and outside the court who said the Supreme Court would be seen as being driven by partisan considerations. He talked about we risk a self-inflicted wound. On the other hand, Justice Thomas, for whom you clerked, said today, he was making an appearance, he said don't apply the rules of the political world to this institution. They don't apply. First of all, who is right here and do you think that, did you see any whiff of partisan considerations in this ruling? JOHN YOO: I actually don't think it was a partisan ruling in the sense we think of Republican versus Democrat or Bush versus Gore. I think there is a deep divide on the court but it's about judicial ideology, which isn't of great concern to everyday Americans. I think there is a deep division on the court of how to interpret the Constitution and the role of the national governments versus a state government. But I don't think you saw some of the heated rhetoric actually you've seen in a lot of 5-4 decisions that the court has rendered in the last ten years about cases like abortion, voting rights, affirmative action, criminal procedure rights where the courts, minority and majority, often accuse each other of twisting the law to reach the results they like. You didn't really see that in this case. MARGARET WARNER: Pam Karlan, did you see any tinge of partisanship here?
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| Tone of the dissent | ||||||||||||||||||||
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MARGARET WARNER: And, Pam Karlan, what about the tone of the dissent? To laypeople reading these they did sound pretty bitter. And much had been made of Justice Ginsburg just saying - instead of I respectfully dissent -- which is I guess the tradition - I dissent. You were a clerk I guess 15 years ago. How do you read this? Are the divisions more bitter? Is there more bitterness on that court? PAM KARLAN: I don't think that the court is bitter. I think it's deeply divided and I wouldn't make too much out of the lack of the world respectfully in there. Justices often do that when they feel strongly, but it's not an unprecedented thing. I think maybe last term she did that many, many times and earlier this week in fact she had a case where she just said I dissent. So I don't think that… that I would read this one word as indicative of some deep division, but I think the court was bitterly divided on this case and that bitter division reflects itself in the opinions. MARGARET WARNER: John Yoo, how do you see that?
MARGARET WARNER: And you think that it won't do damage? JOHN YOO: I don't think so. I mean, compare this to the other situations in our history where the court has come under strong political attack, the Warren court, the New Deal court, the ante-bellum court and the Marshall court. These were periods when the court was at the center of the action, it was making a number of decisions in substantive political issues over time that made it the focus of the political debate. This was a one-time only case. The court is never going to decide this kind of issue again in our life times. A year from now they will be back deciding the regular run-of-the-mill cases that people care about, and I don't think they will be the center of any political criticism after long. MARGARET WARNER: And Pam Karlan, your thoughts on this, what this will do to the image of the court?
MARGARET WARNER: All right. Well Pam Karlan and John Yoo, thanks both again very much. |
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MARGARET
WARNER: And for that legal insight I'm joined once again by two scholars,
and former Supreme Court clerks, who've helped us through much of this
saga: Pam Karlan, an election law specialist at Stanford Law School,
and John Yoo of the Boalt Hall Law School at the University of California,
Berkeley. Well, welcome back once again, you've both said on this program
earlier in this saga that you thought in a politically charged case
like this that the court would try to come up with a unanimous or as
close to unanimous possible ruling. Pam Karlan, as you read through
all of these different opinions what did you see as the fundamental
split that made a unanimous ruling impossible? 
JOHN
YOO: Right, I think you had close to unanimous court. You had a 7-2
opinion on the equal protection clause violation but it really was the
Section 5, December 12th deadline that caused a deadlock, and I think
Pam is quite right that once you had a division on that issue you are
not going to have a unanimous court. However, let me say I don't think
that that argument or holding is as frivolous as some might think. I
think what you had there was actually a reintroduction of the structural
argument that the Constitution gave the Florida legislature the power
to choose presidential electors and that it was up to, since it was
up to the Florida legislature the Supreme Court could intervene and
prevent the Florida courts from overriding the Florida legislature's
desire that everything be settled by December 12. But I agree that there
is a critical division between the court as to whether that December
12 deadline was part of the constitutional power of the Florida legislature
to set and whether it had to be respected by the Florida courts. 
MARGARET
WARNER: All right. Let's talk about Justice Stevens' dissent, and particularly
his last or second to the last sentence. Pam Karlan, he was talking
about the fact that because the court was overruling the Florida courts,
it was implying a lack of confidence in their impartiality, and he said:
"We may never know with complete certainty who won this election,
but 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."
What do you think of that?
JOHN
YOO: Well, obviously Justice Stevens is worried about the politicization
or at least the appearance of a politicization of the judiciary. Pam
is quite right; this is an unusual situation for the five justices of
the majority to be exercising a specially intrusive review over what
state courts do. I might add that it runs both ways. I think the four
dissenters must have found themselves in a very uncomfortable and unusual
position in defending states courts as much as they were in these opinions
but I think the important thing to focus on is -- is Justice Stevens
right, that this decision is going to lead to a lack of respect or diminishment
of the legitimacy of the Supreme Court and the lower courts? I tend
not to think so. I hope his prediction is proven wrong in this regard.
I do think that this was a once in a lifetime or one time only case
in that you are not going to see the Supreme Court become the focus
of political attacks and criticism of its legitimacy a year from now
because of this. 
PAM
KARLAN: No, I didn't. I agree with John Yoo on that. What I did see
is a kind of fundamental disrespect which I think is what this 5-4 split
has indicated in a lot of other cases - a kind of fundamental disrespect
for the other branches of government both federal and state, and that
is the five justice majority here are also the people who have been
most inclined recently to strike down congressional statutes such as
the Gun-Free School Zone Act or the Violence Against Women Act. They've
been the group that's been most inclined to strike down state legislative
reapportionments. And so I think it reflects a deep ideological divide
on the Supreme Court. But I don't think it's a crude justices sitting
in there thinking do I want George W. Bush or Al Gore to be president?
I don't think it's anything like that, no. 
JOHN
YOO: I think Justice Ginsburg is a writer who is very economical with
her words and she'd rather use two words instead of three, so maybe
she just left "respectfully" out. You know, going beyond that,
I think the justices are not very bitter towards one another. I clerked
on the court with the current membership. It's amazing to see how well
they all get along given how sharply worded some of their opinions are
towards one another. In fact I think the justices are very good at letting
bygones be bygones. Something that happens in one case does not have
an effect in another case. I don't think this is the first appearance
of some kind of bitter split that is going to effect the way it's going
to operate in the future. I think Justice Stevens' words really were
pointed at how is the nation and the people going to view the court
as an institution? 
PAM
KARLAN: I think it will cause the court some damage. You know, many,
many years ago Justice Jackson said in a case that involved federal
and state power about the Supreme Court that they shouldn't be so sure
that their reversing state courts was always getting it right. And he
said, we are not final because we are infallible; we are infallible
because we are final. And in this case they were quite final, but I
they were also fallible, and I think they will pay some price for that
although no where near the price they paid for cases like Dred Scott.
I don't think this case is Dred Scott. I think this case is more like
the case in which the Supreme Court held if you didn't have enough money
to pay the filing fees you couldn't go bankrupt. This is a case where
they delayed the election recount and then said, but it's too late to
have a recount. So I think it's more a case where people will think
they were inconsistent and where they rushed in where angels fear to
tread but I don't think this is going to cause the court systematic
damage, or make it impossible for them to issue other opinions that
will garner widespread respect.
