Supreme Vindication
No coincidence.

n recent days we have been treated to press reports that President Bush would have won the vote count in Florida had the Supreme Court not intervened to "stop the counting." (Actually, the Court remanded the case to the Florida supreme court. It did not order the counting stopped.) These reports imply that it was merely a fortuitous coincidence that the Supreme Court's decision had the same effect as a continued vote count would have. But this overlooks a critical fact about the Court's decision in Bush v. Gore that its critics persist in willfully ignoring: The Supreme Court majority merely restored the decisions reached by local, Democratic election officials, decisions that were found to be reasonable by Democratic circuit court judges. It was the decisions by these Democratic officials that the Florida Supreme court had reversed — a reversal that followed its preventing on its own motion the Republican secretary of state from certifying the machine-recount results as required by Florida law.

In other words, the people responsible for counting the votes and certifying results had decided George W. Bush had won Florida, their exercise of discretion was then upheld by lower court judges, and it was only the Florida supreme court — at first unanimously, and then by a vote of 4 to 3 — who overrode their judgment. Local officials were right all along to find Bush the winner. Lower courts were right all along to find that they had not abused their discretion. The Democratic chief justice of the Florida supreme court was right all along to dissent (along with two of his colleagues) from their last intervention. And the U.S. Supreme Court was right all along to restore these judgments and reverse the one court responsible for inflicting chaos on the nation and nearly sabotaging a presidential election: the Democrat-dominated Florida supreme court.

In short, following the law ultimately led to the correct outcome. Given the design of that law, this was no coincidence. But there is another, more cynical reason to believe that this vindication of the five-justice majority in Bush v. Gore is no coincidence.

One could reasonably believe that local Democratic election officials had done everything they could to hand the election to Al Gore, but were unable to mine enough votes from the otherwise spoiled ballots (the "undervotes"). Had their efforts been successful, their decisions would surely have been upheld not only by the lower courts as within their discretion, but by the Florida supreme court as well. By this account, all the majority of the U.S. Supreme Court did was prevent yet another attempt to snatch victory from electoral defeat — by restoring the decision of the partisan local officials who decided correctly that, notwithstanding their best efforts, George Bush was the winner.

Either way, though it was hardly inevitable that the press recounts would vindicate the five-justice majority in Bush v. Gore, neither was it a coincidence. Far from subjecting them to unending recriminations, the nation owes these justices thanks for doing their judicial duty in the face of foreseeable outcries from the partisan intelligentsia. Pundits, and my academic colleagues, owe them an apology for impugning their professional integrity. For, by upholding the decisions of local election officials, the justices not only reigned in an out-of-control lower court — they also restored the correct vote result that had already been calculated by those charged with this responsibility, and certified by the secretary of state.

So whether local Democratic officials were acting partially or impartially, it was no coincidence that, by reversing the four Florida justices who had cast aside the decisions of these officials and of lower court judges, the outcome of Bush v. Gore corresponded to the tally eventually reached by the press.