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Friday, October 29, 2004 - Page updated at 12:00 P.M.
Collin Levey / Times editorial columnist
A Supreme Court justice just threw a wrench into Democrats' plans to litigate a John Kerry defeat into victory, should President Bush prevail by a narrow margin in Tuesday's election.
Over the weekend, in a speech at Stanford University Law School, Justice Stephen Breyer cast doubt on his own impartiality when he penned his dissent in Bush v. Gore, the ruling that decided the 2000 presidential contest.
"I had to ask myself, would I vote the same way if the names were reversed," the justice mused. "I said 'yes.' But I'll never know for sure because people are great self-kidders."
Like Federal Reserve chief Alan Greenspan, Supreme Court justices are well-practiced in the nuances of sending messages. Breyer's comment should be a clear warning to judicial activists who salt the ranks of courts in swing states like Florida and Ohio. The message is: Don't count on me to back up any partisan rulings.
Chief Justice William Rehnquist seconded the warning, with the pointed announcement that he'd be back on the bench (after surgery for thyroid cancer) on Nov. 1 the day before the election. Democrats can't hope for a 4-4 split to incapacitate the high court.
The Supremes, after all, waded into the 2000 election only with great reluctance, and only in the face of gross judicial overreach. As Roger Pilon, constitutional studies chair at the Cato Institute, explains, "the problem in 2000 was not that the U.S. Supreme Court acted politically but that the Florida Supreme Court did so not once but twice."
Today, five of the seven Florida Supreme Court judges from 2000 remain on the bench. In Ohio, Secretary of State J. Kenneth Blackwell has already denounced U.S. District Judge James Carr as "a liberal judge ... who wants to be co-secretary of state" after Carr overturned Blackwell's limits on provisional ballots. (The Sixth Circuit Court of Appeals then overruled Carr.)
Cases don't just materialize at the Supreme Court they have to start somewhere. And the pre-election legal hocus-pocus under way is unlikely just to fade into the mist after Tuesday. In 2000, it took a crazily narrow Florida vote tally to turn the election into a legal cliffhanger. This year, those aiming to delegitimize any outcome may not be deterred even if the difference is tens of thousands of ballots. "Every provisional ballot is a lawsuit in itself," notes American Enterprise Institute scholar John Fortier.
Then there's the fiasco-waiting-to-happen in Colorado: a ballot initiative that would turn the state from a winner-take-all to a proportional split of Electoral College votes. If that had been in effect in 2000, Al Gore would now be running for re-election. If the measure passes this time, the legal fight would turn on whether it applies to that same day's election.
Colorado's governor, Congress and the Supreme Court could all have a role to play. The prospective mess may be one reason the measure's now dropping in the polls.
The Supreme Court justices have always adhered to the late Justice Felix Frankfurter's prescription of "judicial lockjaw." But some preventive signaling right now is appropriate. In 2000, the high court leaned over backward to assert that nothing in its Bush v. Gore decision should be deemed fertile precedent for future election lawsuits. That was clearly a pipe dream, judging by the "equal protection" lawsuits being filed by the dozens.
There already has been visible spoiling by some in the legal community to punish the Supreme Court, regardless. Guido Calabresi, a federal judge on the 2nd Circuit Court of Appeals in New York City, notoriously told a liberal group in June that Bush's election was like Mussolini's rise to power the president had been installed by the "illegitimate acts of a legitimate institution." Calabresi later apologized, explaining he meant the remarks as part of "a rather complicated academic argument."
But hyperbole aside, it was Democrats last time who advocated judicial involvement to begin with. Remember Sen. Joe Lieberman wringing his hands about participation by the Florida Legislature? Or former New York Gov. Mario Cuomo saying it was the courts that should decide?
Eric Holder, a former Justice Department official in the Clinton administration, declared not once but twice on Fox News that any election not won by John Kerry would have to be considered legally suspect: "You heard it right here. If every vote is allowed to be cast and every vote is counted, John Kerry will be president."
The vast majority of Americans Democrats and Republicans would surely prefer to see this election settled quickly, without the overlawyered spectacle of 2000. But it can't hurt to have signals, in a country governed by laws, from members of its highest court. Chaos-seekers are on notice from Justices Rehnquist and Breyer: Once is enough.
Collin Levey writes regularly for editorial pages of The Times. E-mail her at firstname.lastname@example.org
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