Originally at http://www.nytimes.com/2000/12/16/opinion/16LEWI.html

December 16, 2000

A Failure of Reason


BOSTON -- "How can I convince my students now that the integrity of legal reasoning matters?"

That was the despairing comment of one law professor after he read the per curiam opinion that spoke for five members of the Supreme Court. His reaction, widely shared among law teachers, points to the real failure of the decision that gave the presidency to George W. Bush.

The problem is not so much that the court intervened in politics. It is that the majority's stated reasons for its decision were so unconvincing.

Courts have an obligation to persuade. Their power is legitimate only if they give reasoned arguments for what they do. By that standard, the decision in Bush v. Gore was a dismal failure.

The 5-4 majority decided that disparate standards for recounting ballots in different Florida counties denied voters the equal protection of the law and that there was no time to carry out a recount under a proper, single standard. Many have noted the irony in that conclusion: The Supreme Court itself, by stopping the recount on Dec. 9, helped run out the time.

But there is a further, even more damaging aspect to the Supreme Court's performance. When Governor Bush asked the Supreme Court to intervene for the first time, on Nov. 22, he raised the equal-protection question, among others. The court granted a review -- but not on that question. It sent the case back to the Florida Supreme Court on Dec. 4 without a hint of the equal-protection problem, which could then have been resolved in ample time.

The Florida court could have gone ahead on its own to set a specific rule for all ballot counters, instead of using the vague statutory standard of "the intent of the voter." But if it had done so, the justices in Washington would surely have said that step was an improper change in the law.

The majority, deciding the case at 10 p.m. on Dec. 12, said time was crucial because an old federal law declares that any state certification of its electoral vote is valid if filed by Dec. 12. But states have often filed after Dec. 12, and many missed the date this year.

Would Florida give priority to filing by Dec. 12 or to making sure that its count was complete and fair? Florida statutes aim at both objectives. Which should prevail was a question of Florida law, not one to be made by the U.S. Supreme Court.

Prof. Michael W. McConnell, a legal conservative at the University of Utah College of Law, made just that point in The Wall Street Journal. "The Dec. 12 `deadline' is only a deadline for receiving `safe harbor' protection for the state's electors," he wrote. "A state is free to forgo that benefit if it chooses. . . . The decision is one for the state to make."

For that reason, Professor McConnell said, it would have been better for the justices to leave the issue to the Florida court. And it would have been the wiser course politically, he said. Two dissenting justices, David Souter and Stephen Breyer, agreed that there were equal-protection problems, so a remand to see whether a recount could be carried out on a single standard by Dec. 18, when the electors are supposed to meet, would have been by a more convincing 7-2 vote.

The majority's rush to judgment has no credible explanation in the per curiam opinion. So the country is left with the impression that five justices acted as they did because they cared more about the result -- ending the recount -- than they did about the reasoning that would compel it.

A thoughtful British columnist, Philip Stephens of The Financial Times, said the decision put "indelible stain on the court's always half-illusory reputation as honest guardian of the Constitution." Deciding a case of this magnitude with such disregard for reason invites people to treat the court's aura of reason as an illusion.

That would be a terrible price to pay. The Supreme Court must have the last word in our system because its role is essential to our structure of freedom. Preservation of the public respect on which the institution depends is far more important than who becomes president.

In a recent column I said that if Governor Bush won because the Florida Legislature awarded him the state's electors, he could say of the election what Barry Goldwater said of the Panama Canal: "We stole it fair and square." The statement about the canal was actually made by Senator H. I. Hayakawa.