|THE SUPREME COURT|
December 11, 2000
Jan Crawford Greenburg of the Chicago Tribune shares her observations of today's proceedings.
GWEN IFILL: That brings us to today's showdown inside the Supreme Court
building. Here to set the scene for us is Jan Crawford Greenburg, legal
affairs correspondent for the "Chicago Tribune." She was at
the court this morning.
JAN CRAWFORD GREENBURG: Well, obviously it was quite dramatic and tense, and intense. But, you know, this is the court's kind of second run at this Florida election controversy. They had arguments on December 1st that the Florida Supreme Court had also gone too far when it ordered a certain remedy. So in many ways, it didn't have quite the drama that you would have been expecting. I mean, this was almost like the sequel. In fact, the lines outside weren't as long to get in, the last time people to get in the lawyers line if you're a member of the Supreme Court bar, had to wait almost overnight. This time they got there at 8:00 and were able to walk into the 11:00 arguments. So I thought that was quite strange, because the stakes this time are quite high, and quite clear.
GWEN IFILL: In fact, it seems like the stakes were higher this time than last time. Was there a greater sense or a similar sense of history being made, as it was last time?
JAN CRAWFORD GREENBURG: Certainly. And the Justices again when I said the arguments and the mood in the courtroom was intense, the Justices' questions were very intense; they strenuously and vigorously questioned the lawyers on all sides. But they didn't get testy; they didn't get testy with the attorneys or with one another. They were very serious and focusing on the issues at hand and trying to resolve the very difficult legal problems in this case.
GWEN IFILL: This was a relatively quick turn around from their decision to take up the case on Saturday until today, but yet did they seem extraordinarily prepared as if they had been reading all the papers?
JAN CRAWFORD GREENBURG: Very, very.
GWEN IFILL: -- or reading all the briefs.
JAN CRAWFORD GREENBURG: Very prepared. And again I think part of that is because some of these legal arguments they've heard before, they heard on December 1st, and Governor Bush has made similar points that the Justices heard then. So in that way, today's arguments were in many ways much crisper, much more focused. These Justices knew what the legal issues were, these lawyers knew what the Justices wanted to hear. And we had 90 minutes of an extraordinary session of them exploring those issues.
GWEN IFILL: Well, Jan, don't go away. We're going to now listen to extended excerpts of some of those arguments from today. The court released audiotape of the proceedings immediately afterward. Ray Suarez reports.
SPOKESMAN: We'll hear argument now on number 00-949, George W. Bush and Richard Cheney versus Albert Gore et al.
RAY SUAREZ: Each side had 45 minutes to make its case. Governor Bush's attorney went first. Ted Olson barely began his statement when he was interrupted by the two Justices who are considered swing votes on the court, Anthony Kennedy and Sandra Day O'Connor. Their concern: Whether this case belonged in the federal courts at all.
THEODORE OLSON: Just one week ago, this court vacated the Florida Supreme Court's November 21 revision of Florida's election code, which had changed statutory deadlines, severely limited the discretion of the state's chief election officer, changed the meaning of words such as "shall" and "may" into "shall not" and "may not," and authorized extensive, standardless, and unequal manual ballot recounts in selected Florida counties. Just four days later, without a single reference to this court's December 4 ruling, the Florida Supreme Court issued a new, wholesale post-election revision of Florida's election law. That decision not only changed Florida election law yet again, it also explicitly referred to, relied upon, and expanded its November 21 judgment that this court had made into a nullity.
SPOKESPERSON: Mr. Olson...
JUSTICE ANTHONY KENNEDY: Can you begin by telling us our federal jurisdiction? Where's the federal question here?
THEODORE OLSON: The federal question arises out of the fact that the Florida Supreme Court was violating Article 2, Section 1 of the Constitution, and it was conducting itself in violation of Section Five of Title III of the federal law.
RAY SUAREZ: Article 2, Section 1 of the U.S. Constitution says, "Each state shall appoint in such a manner as the legislature thereof may direct a number of electors," and Section 5 of Title III of the U.S. Code provides for the final determination of any controversy or contest concerning the appointment of all or any of the electors shall have been made at least six days before the time fixed for the meeting of the electors. That sets the deadline of December 12.
JUSTICE ANTHONY KENNEDY: On the first, it seems to me essential to the Republican theory of government that the constitutions of the United States and the states are the basic charter. And to say that the legislature of the state is unmoored from its own constitution and it can't use its courts and it can't use its executive agency... even you, your side, concedes it can use a state agent seems to me a holding which has grave implications for our Republican theory of government.
THEODORE OLSON: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of the electors in state legislatures. Legislatures, of course, can use the executive branch in the states, and it may use, in its discretion, the judicial branch.
JUSTICE ANTHONY KENNEDY: Then why didn't it do that here?
THEODORE OLSON: I did not do that here because it did not specify... It did use the executive branch. In fact, it vested considerable authority in the secretary of state, designating the secretary of state as the chief elections official.
JUSTICE SANDRA DAY O'CONNOR: I have the same problem Justice Kennedy does, apparently, which is, I would have thought you could say that Article 2 certainly creates a presumption that the scheme the legislature has set out will be followed, even by judicial review, in election matters, and that III, U.S. Code Section 5 likewise suggests that there... it may inform the reading of statutes crafted by the legislature so as to avoid having the law changed after the election. And I would have thought that that would be sufficient, rather than to raise an appropriate federal question.
THEODORE OLSON: Well...
JUSTICE SANDRA DAY O'CONNOR: Rather than to say there's no judicial review here in Florida.
THEODORE OLSON: I think that I don't disagree with that, except to the extent that I think that the argument we presented and amplified in our briefs is a good argument. It's a solid argument. It is consistent with the way the code is set up, and it's particularly consistent with the timetable that's available in presidential election.
RAY SUAREZ: Justices repeatedly asked both sides about the standards which would be used for counting ballots by hand. That's what two Justices wanted to pursue-- Ruth Bader Ginsburg and David Souter.
JUSTICE RUTH BADER GINSBURG: Mr. Olson, you have said the intent of the voter simply won't do; it's too vague, it's too subjective. But at least... but at least those words, "intent of the voter," come from the legislature. Wouldn't anything added to that be... wouldn't you be objecting much more fiercely than you are now if something were added to the words that the all-powerful legislature put in the statute?
THEODORE OLSON: Well, I think we have to distinguish between whether we're talking about a prospective uniform standard, as opposed to something that changes the process in the middle of the counting and evaluating of disputes. But certainly we're...
JUSTICE RUTH BADER GINSBURG: But if we're talking about... if we're talking about the contest, period, and this statute, as Justice Souter pointed out, speaks with amazing breadth. It says that the circuit judge-- this is the text-- shall fashion any order he or she deems necessary to prevent or correct any wrong, and to provide any relief appropriate to the circumstances. I couldn't imagine a greater conferral of authority by the legislature to the circuit judge.
THEODORE OLSON: But I... we submit, in the context of the entire election code itself... now the intent of the voter standard, the one that's been cited and relied on by our opponents most, is a provision that's contained in the provision of the election code that deals with damaged or spoiled ballots.
JUSTICE DAVID SOUTER: Okay, but we have... there's no question that the closest we can come now, under Florida law, is an intent of the voter standard. Is it your position that if any official, judicial or executive, at this point were to purport to lay down a statewide standard which went to a lower level, a more specific level, than intent of the voter, and said, for example, "count dimpled chads" or "don't count dimpled chads," in your judgment, would that be a violation of Article 2?
THEODORE OLSON: If we went from the standard that existed before, the dimpled chads that hadn't... that had not been a standard anywhere in Florida, if that change was made, we would strongly urge that that would be a violation of Article 2.
RAY SUAREZ: Then Justice Antonin Scalia, who wrote for the majority in stopping the hand count this weekend, jumped in.
JUSTICE ANTONIN SCALIA: Mr. Olson, it is also a part of your case, is it not, that insofar as that language you just quoted is concerned, the power of the circuit judge to prevent or correct any alleged wrong... It's part of your submission, I think, that there is no wrong when a machine does not count both ballots that it's not supposed to count?
THEODORE OLSON: That's absolutely correct, Justice Scalia.
JUSTICE ANTONIN SCALIA: When the voters are instructed to detach the chads entirely, and the machine, as predicted, does not count those chads, where those instructions are not followed, there isn't any wrong?
THEODORE OLSON: That's correct. They've been... this has been euphemistically referred to as legal votes that haven't been counted. These are ballots where the system created by Florida, both with respect to the initial tabulation and the preferred system for the recount, the automatic recount in close elections is to submit those ballots to the same mechanical, objective scrutiny that the initial count was done. And those were not counted, either because there were votes for more than one candidate, which would make them over votes, I guess they're calling them, or that they read as no vote, which many people do. Many people do not vote in the presidential election even though they're voting for other offices.
RAY SUAREZ: Justice Stephen Breyer, one of the court's liberals, returned to the issue of standards in questioning the attorney for the Florida secretary of state.
JUSTICE STEPHEN BREYER: What would be a fair subsidiary standard applied uniformly, were it to be applied uniformly across all the counties of Florida, including Broward, a fair, uniform standard for under votes? Remember, Indiana has a statute; Michigan has a statute; 33 states have a statute where they just say "intent of voter." If you were looking for a basically fair standard, to take one out of a hat, Indiana or Palm Beach, 1990, in your opinion, would be a basically fair one?
JOSEPH KLOCK: If I were to take one out of a hat, Your Honor, if I was a legislature, what I would do is I would hold that you have to punch the chad through on a ballot. In those situations where you have a ballot where there were only indentations in every race, you might then come up with a different standard. But the only problem that we have here is created by people who did not follow instructions.
RAY SUAREZ: When Gore's attorney, David Boies, took his turn, Justice Scalia asked him about the Republican argument that the Florida court was rewriting law after the election.
JUSTICE ANTONIN SCALIA: It seems to me you acknowledge that if the Florida Supreme Court's interpretation of this law were not a reasonable interpretation, just not one that would pass normal judicial muster, then it would be just like the legislature writing a new law. But your contention here is that this is a reasonable interpretation of the Florida law?
DAVID BOIES: I think the way I would put it, your honor, is that if you conclude that the Florida Supreme Court's interpretation of Florida law is either a sham, or it is so misguided that it is simply untenable in any sense...
JUSTICE ANTONIN SCALIA: Right.
DAVID BOIES: ...I think, at that point, then you can conclude that what it has done is it has changed the law. But I think the standard is the standard this court has generally applied in giving deference to state Supreme Court decisions.
JUSTICE SANDRA DAY O'CONNOR: But is it, in light of Article 2? I'm not so sure. I mean, I would have thought that that bears on the standard, frankly, when it contemplates that it is plenary power in the legislature. Does that not mean that a court has to, in interpreting a legislative act, give special deference to the legislature's choices insofar as a presidential election is concerned? I would think that is a tenable view, anyway, and especially in light also of the concerns about Section 5.
DAVID BOIES: I think, Your Honor, that if the Florida Supreme Court... in interpreting the Florida law, I think the court needs to take into account the fact that the legislature does have this plenary power. I think when the Florida Supreme Court does that, if it does so within the normal ambit of judicial interpretation, that is a subject for Florida's Supreme Court to take.
JUSTICE SANDRA DAY O'CONNOR: But they are responding as though there were no special burden to show some deference to legislative choices in this one context, not when courts review laws generally for general elections, but in the context of selection of presidential electors. Isn't there a big red flag out there-- "watch out"?
DAVID BOIES: I think... I think there is, in a sense, your honor, and I think the Florida Supreme Court was grappling with that.
JUSTICE SANDRA DAY O'CONNOR: And you think it did it properly?
DAVID BOIES: I think it did do it properly.
JUSTICE SANDRA DAY O'CONNOR: That's, I think, a concern that we have. And I did not find really a response by the Florida Supreme Court to this court's remand in the case a week ago. It just seemed to kind of bypass it and assume that all those changes and deadlines were just fine and they'd go ahead and adhere to them. And I found that troublesome.
RAY SUAREZ: Boies was also asked about the standard ballot counters should use by Justice Souter.
JUSTICE DAVID SOUTER: In jury-to-jury cases, we assume that there is not an overall objective standard that answers all questions definitively. We are assuming that there is detail that cannot be captured by an objective rule. The assumption of this question-- and I think it's behind what's bothering Justice Kennedy, Justice Breyer, me, and others-- is we're assuming there's a category in which there just is no other... there is no subjective appeal. All we have are certain physical characteristics. Those physical characteristics, we are told, are being treated differently from county to county. In that case, where there is no subjective counter indication, isn't it a denial of equal protection to allow that variation?
DAVID BOIES: I don't think... I don't think so, your honor, because-- and maybe I am quarreling with the premise that says there are these objective criteria-- maybe if you had specific objective criteria in one county that says, "we're going to count indented ballots" and another county that said, "we're only going to count the ballot if it's punched through"; if you knew you had those two objective standards and they were different, then you might have an equal protection problem.
JUSTICE DAVID SOUTER: All right. We're going to assume that we do have that. We can't send this thing back for more fact-finding. If we respond to this issue and we believe that the issue is at least sufficiently raised to require a response, we've got to make the assumption, I think at this stage, that there may be such variation, and I think we would have a responsibility to tell the Florida courts what to do about it. On that assumption, what would you tell them to do about it?
DAVID BOIES: Well... I think that's a very hard question. ( Laughter )
JUSTICE: You'd tell them to count every vote. You'd tell them to count every vote, Mr. Boies, wouldn't you?
DAVID BOIES: I would tell them to count every vote... ( Laughter )
JUSTICE JOHN PAUL STEVENS: Well, let me ask you... Before you answer that question, Mr. Boies, does not the procedure that is in place there contemplate that the uniformity will be achieved by having the final results all reviewed by the same judge?
DAVID BOIES: Yes. That's what I was going to say, Your Honor, that what you have here is you have a series of decisions that people get a right to object to. That is all going through a process: The people are there, they submit written objections, and then that's going to be reviewed by a court.
RAY SUAREZ: Justice Kennedy returned to the issue of whether the Florida Supreme Court had created new law.
JUSTICE ANTHONY KENNEDY: My concern is that the contest period, as we've been talking about, requires the setting of standards, judicial review. And by reason of... well, I take it to be your earlier position in the litigation, this period has been truncated by 19 days, causing the time frame of which we're all so conscious, making it difficult for appellate review. And it seems to me, and we're getting back to the beginning of this, that the legislature could not have done that by a statute without it being a new law, and that neither can the Supreme Court without it being a new law, a new scheme, a new system for recounting at this late date. I'm very troubled by that.
DAVID BOIES: But, Your Honor, leaving aside the prior case about the extension of the time for certification, which I think at this stage you have to leave aside because at the contest stage, what you're doing is you're contesting specific ballots whether or not they were included in the certification...it's absolutely clear under Florida law that that's what the contest is about. So at the contest stage, the only question is, can you complete the contest on the contested ballots in the time available? Everything that's in the record is that we could have and, indeed, we still may be able to.
RAY SUAREZ: At the end, Republican attorney Olson returned for a rebuttal, and he faced a skeptical Justice Ginsburg.
THEODORE OLSON: There is no question, based upon this record, that there are different standards from county to county...
JUSTICE RUTH BADER GINSBURG: Well, there are different ballots from county to county too, Mr. Olson, and that's part of the argument that I don't understand. There are machines, there's the optical scanning, and then there are a whole variety of ballots. There's the butterfly ballot that we've heard about, and other kinds of postcard ballots. How can you have one standard when there are so many varieties of ballots?
THEODORE OLSON: Certainly the standard should be that similarly situated voters and similarly situated ballots ought to be evaluated by...
JUSTICE RUTH BADER GINSBURG: Then you'd have...
THEODORE OLSON: ...Comparable standards, and...
JUSTICE RUTH BADER GINSBURG: Then you'd have to have several standards.
THEODORE OLSON: Well, you...
JUSTICE RUTH BADER GINSBURG: County-by-county would be...
THEODORE OLSON: You're certainly going to have to look at a ballot that you mark in one way different than these punch card ballots. Our point is, with respect to the punch card ballots, is that there are different standards for evaluating those ballots from county to county.
JUSTICE STEPHEN BREYER: If you start with the premise a clear intent of a vote should count, where there's a clear intent on the ballot it should count as a vote, can't you reasonably get to the majority's conclusion?
THEODORE OLSON: I don't believe so, because we know different standards were being applied to get to that point, and they were having different results.
JUSTICE: Thank you, Mr. Olson. The case is submitted.
GWEN IFILL: Still with me is Jan Crawford Greenburg of the "Chicago
JAN CRAWFORD GREENBURG: Well, as you know, people often refer to it as a closely divided court, one that fractures 5-4 on controversial issues, with the 5 more conservative Justices in the majority -- then the four more liberals in the minority. But that oversimplifies things a bit. These Justices don't wear those neat labels very well. They often don't vote along the traditional ideological lines, as some people would suggest. And I think the last time around, when we saw the arguments on December 1st, that was a good indication. Coming out of the arguments you heard a lot of people saying that it appeared to be divided 5-4. But then three days later on December 4th we got that unanimous ruling sending the matter back down to the Florida Supreme Court.
GWEN IFILL: And even this weekend when the stay was issued and Justice Scalia wrote the justification for that, that was also divided 5-4, and everyone said it's all over, but not necessarily so.
JAN CRAWFORD GREENBURG: That's also very hard to predict. As you saw from the excerpts that we just listened to, these justices, particularly the ones who are referred to as the swing votes, Justices O'Connor and Kennedy, had concerns with the arguments on both sides. And then you saw some of the more liberal Justices, Justices Souter and Breyer, raising very serious concerns that the lack of standards involved in some of these recount might violate the constitution's equal protection clause.
GWEN IFILL: That was interesting. Most laypeople like me don't get to hear these folks actually talk, and watching the way they interact is interesting. When they got to the part about the equal protection clause and the 14th Amendment, it almost seemed like Justice Souter was trying to negotiate a deal before our eyes with his colleagues. Does that happen a lot where they seem to be working it out right on the bench?
JAN CRAWFORD GREENBURG: Not always. Although again I think you saw that on December 1 in the first Florida election law case, when Justice Ginsburg suggested during the argument that maybe we should just send this back to the Florida Supreme Court and have it better explain its decision. So sometimes in these kind of cases you do, and, as you suggested, I do think there was some effort to reach a middle ground. Obviously this court would prefer on such a politically explosive issue not to be divided 5-4 along ideological lines.
GWEN IFILL: You also think of the court as kind of an ivory tower where they're above it all, and they speak in very high tongue legalese, but they seem to be very much aware of things happening outside their chambers, like just now when we heard Justice Scalia make that little dig at David Boies, saying, you know, I know what you would say, you would count the vote.
JAN CRAWFORD GREENBURG: Referencing what Boies has said repeatedly before television -
GWEN IFILL: .., Is that unusual, that kind of lightness of exchange?
JAN CRAWFORD GREENBURG: Again, no, not always. Justice Scalia is often injecting his own humor into the case. And Justice O'Connor, for example, will try to point to more practical concerns about how cases might have real world practical impact on real people. But some of the other Justices are a little more in the ivory tower, and in argument a couple weeks ago Justice Souter actually kind of mocked his colleague that he sits next to, I mean, Justice Scalia kind of mocked his colleague he sits next to, Justice Souter, for not being aware of some of the event in the news.
GWEN IFILL: One of the things they also talk about, much comment was made after the December 1st arguments about how Justice Thomas had nothing to say. Today we didn't here that from much from Chief Justice Rehnquist either.
JAN CRAWFORD GREENBURG: Right, he was noticeably quiet. He was as well, I think, in the December 1st argument, maybe a little more active. But again different Justices have quite different styles. Justice Scalia and Justice Souter are very active on the bench, and they were today, and often what you will see from those two Justices is that they will actually jump in and try to assist the side that they might support if the attorney seems to be struggling with an issue. Now Justice Scalia did that today. So you see that frequently, where Souter will pose a question, the lawyer might struggle to answer it and Scalia will jump in to assist, and vice versa.
GWEN IFILL: As we sit here tonight, we're waiting to see what the Supreme Court is going to decide. Based on the way they usually behave, do we have any sense about when a decision will come?
JAN CRAWFORD GREENBURG: No, none. I wish we did, I wish they would do like the Florida Supreme Court and give us a heads up. In fact on December 4 when they ruled in the first Florida election case, we had no idea what was coming, the regular Supreme Court press, we were all sitting in the courtroom covering arguments in a search and seizure case when someone from the Public Information Office just handed us the opinions from this historic case. And of course we all got up and left the courtroom.
GWEN IFILL: Okay. In a big rush, I'll bet. Thanks a lot.
JAN CRAWFORD GREENBURG: Thank you.