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Jewish World Review Nov. 27, 2000 / 29 Mar-Cheshvan, 5761

George Will

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This willful court -- "The accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny."

--James Madison, Federalist 47

Al Gore's assault on the rule of law, crowned with success by Florida's lawless Supreme Court, has now become a crisis of the American regime. See above.

In asking that court on Monday to do what Gore wanted, attorney David Boies uttered a notable understatement: "I believe that there is going to have to be a lot of judgment applied by the court." Consider the radicalism--it far exceeds routine judicial activism--of what the court did with its "judgment."

Barry Richard, a George W. Bush lawyer, accurately told the court that Gore was asking it to read a statute, which says returns "must" be filed by a date and time certain, as though it says returns may be filed by a date and time certain. And, Richard said, Gore was asking the court to read a statute that says Florida's secretary of state "may" accept late returns as though it says she "must" accept late returns. So, Richard said, in order to rule for Gore the court must "disregard the well-established and long-standing doctrines" regarding the "clearly erroneous" standard, and regarding "implied repeal."

The "clearly erroneous" standard is this: For a higher court to overturn the ruling of a lower court, it must find the lower court clearly erroneous. In this case, it must find that the trial court had no reasonable basis for ruling that Florida's secretary of state did not abuse her discretion when she acted as though the statute reads the way it does, rather than the opposite way that Gore wants it to be read. Furthermore, when a court reads a statute as having a meaning directly contrary to its clear language, the court implicitly repeals the statute.

So the court, in a trifecta of willfulness, traduced all three branches of government. It says it acted out of respect for "the will of the people." But not the people's will as expressed by the people's elected representatives in the legislature that wrote the election laws. And not the people's will as expressed in the election of the secretary of state to enforce the laws.

During oral arguments Monday, a justice mused, "Are we just going to reach up from some inspiration and put it down on paper?" Which the court did Tuesday night, saying the secretary of state could not enforce the statutory deadline for receiving vote totals, because, the court said, that deadline made recounting impossible. So the court plucked from the ether a Sunday night deadline. Then yesterday, Miami-Dade County officials threw up their hands and declared additional recounting impossible because of the court's new deadline. Chaos, courtesy of the court.

In Federalist 81 Alexander Hamilton said the "supposed" danger of judicial "encroachments on the legislative authority" is a "phantom." In Federalist 78 he pronounced the judicial branch the "least dangerous" because it neither wields "the sword" nor controls "the purse," and hence "can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

No, a lawless court, using the force of its willfulness to impose its judgment, also depends on the deference of both political branches. Will Florida's legislature defer to the Supreme Court's usurpation of legislative powers in the service of Gore's attempted usurpation of the presidency?

By legislating--by airily rewriting Florida's election law and applying it retroactively to this election--the court has thrown down a gauntlet to the state's legislature. Responding in the climate of cynicism and trickery Gore has created, legislators could decide that deference now would betoken decadence; they could exercise their legal right to select Florida's presidential electors. If in the third week after the election Gore at last manages, by getting selected ballots judged by frequently adjusted standards, to manufacture enough votes to take the lead, his electors will be no more legitimate than any others created by raw assertions of power.

Addressing the court on Monday, Boies used the language of contemporary liberalism's relish for judicial imperialism. Nine times Boies urged the court to wield its "power." In doing just that the court has refuted Hamilton's sanguine assurance (in Federalist 81) that although "misconstructions and contraventions of the will of the legislature may now and then happen," they can never "affect the order of the political system." We are a sadder but wiser nation now.

Comment on JWR contributor George Will's column by clicking here.


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