t is often remarked that the Senate Majority leader has an incredibly difficult job. After all, how do you manage 100 men and women who all believe that they are presidents in waiting? If you think that job is tough, try to cobble together decisions with nine people who have lifetime appointments, vastly different ideologies, and who must somehow agree on how to interpret the laws while protecting institutional integrity. This is the job of the chief justice of the United States Supreme Court. While yesterday's decision is by no means perfect, Chief Justice Rehnquist's ability to pull together a supermajority on one question, and to bring needed finality to the belabored process is a testament to his skill in this role.

The decision was somewhat confusing, due in large part to the number of concurring and dissenting opinions. The order of the court itself, however, was fairly straightforward. To begin with, seven members of the court decided that the recount procedures established by the Florida supreme court would violate the Equal Protection Clause of the Constitution. Despite the larger vote count on this question, this argument is not without significant flaws, as Professor Richard Epstein pointed out in "Constitutional Crash Landing."

The court seemed cognizant of the limitations of the equal-protection argument, and therefore attempted to issue a narrow decision — one befitting an admittedly peculiar case. Accordingly, the court made clear that: "Our consideration is limited to present circumstances, for the problem of equal protection in election processes generally presents many complexities." In other words, the court recognized that the disparities in this case were gross, that it was deciding this particular case, and that the case's value as precedent will therefore be somewhat diminished. This clearly was aimed at curtailing the cries now being issued that we must have one unified election standard across the country in order for recounts to meet the equal-protection standard. While many look to the court to set broad precedents, overreaching to establish comprehensive policies where the facts of the case do not provide for such a solution is a mistake, and one avoided by this court.

The second element of the decision — the court's interpretation of the deadline and the availability of remedy — was decided 5-4, and has led to the howls that this was a divided, partisan decision. Any allegation that this decision has less legitimacy or force because of the narrow margin is absurd, for reasons elaborated in "5-4 Standard." The deadline determination was made pursuant to 3 USC §5, a provision of the federal law that provides in part that if a state legislature avails itself of the statute by selecting its electors by December 12th, then Congress will consider those electors controlling. The majority of the U.S. Supreme Court recognized that the Florida supreme court itself had declared that the Florida legislature intended to avail itself of this safe harbor. This is important because under the Constitution and case law, the legislature's power to determine electors is plenary. Accordingly, the court found that a remedy that would violate the safe harbor would be beyond the power of the Florida courts. Essentially, once the Florida supreme court admitted that the legislature intended to comply with the December 12th deadline, the jig was up, and their power to fashion remedies thereafter was prohibited, first by statute, and finally by the decision of the United States Supreme Court.

When you read the two provisions together, the decision is clear: the recount procedures that the Florida supreme court established are unconstitutional, and by the Florida supreme court's own admission, the deadline for fashioning remedies was December 12th. Given the elapsed deadline, Gore's hopes of legitimate future legal action are therefore precluded. The court remanded, and while some of the Gore supporters speculated that this must mean that the Florida supreme court could offer a new remedy, this is not consistent with how the Supreme Court handles decisions generally (the court often remands for the simple entry of an order by the lower court) or how it decided this case specifically (recognizing an immovable deadline that expired soon after the decision was rendered).

Following the decision, the press reported Democratic suggestions that Gore should fight on, should not concede, and should ask the Florida supreme court to order a new recount by the 18th. But the U.S. Supreme Court's decision plainly doesn't allow this, something made clear not only by the decision of the court but by the court's vitriolic dissenters. The statements in support of "fighting on" seem to be motivated less by a misunderstanding of the decision, and more by a desire to transform what is an act of futility into an act of magnanimity. With the U.S. Supreme Court's decision yesterday, Gore's appeals are functionally closed. There should be no confusion about the fact that he has dragged out this process as far as he legitimately can, and that his conceding at this point is all but required. Yes, he could appeal to the Florida supreme court on remand, but their hands are tied: If they try to order a new hand count at this point, it would be directly contrary to the U.S. Supreme Court's order — something that even the Florida supreme court should have second thoughts about doing — and would be struck down instantly. Accordingly, Gore's speech this evening is compelled by the termination of available credible legal options. His chance to be gracious in defeat ended some time ago; choosing not to ask the Florida court to defy a direct ruling of the United States Supreme Court should not be counted as "magnanimous."

The United States Supreme Court's opinion is not without flaws, but it has the virtue of bringing finality — as required by the nation and ultimately by the Constitution — to the process. Given the short timeframe and the contentious nature of the issues, the surprise is not that the court was split, but that it was as unified as it ultimately was — an outcome, which is no small testament of the skill of the chief.