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DECEMBER 11, 2000

A divided Supreme Court will hear arguments today in yet another historic case that may finally end the dispute over the Presidential race.

The nation has been down this road before, however, and just a week earlier, the nation's highest court failed to bring resolution to the issue. But both Texas Governor George W. Bush and Vice President Al Gore hope the outcome will be different the second time around as their lawyers prepare for a 90-minute Constitutional showdown this morning.

In the words of the majority opinion written by Justice Antonin Scalia, Bush has a "substantial probability" of winning his case. Their 5-4 order issued on Saturday cut short the recounts Gore needs to stay afloat in the battle for the Presidency.

By siding with Bush, the justices agreed that counting an estimated 43,000 ballots which had not registered a vote for President could cause "irreparable harm" to the democratic process. Counties throughout the state had begun counting at 12p.m. on Saturday but were stopped by the Supreme Court around 2:45p.m.

Disagreeing strongly, however, were Justice John Paul Stevens and three others, who not only criticized the majority's view of "irreparable harm," but also what they perceived as a strong departure from prior decisions by the Court. Respect for states' rights and for the ability of other branches of the government to resolve disputes were two precedents cited by Stevens in his dissent.

Still, the Court's narrow decision to stop the recounts reflects a common occurrence among their recent decisions. In 1999, the Court barely upheld by 5-4 the off-reservation treaty rights of Chippewa bands in Minnesota.

The Court's division also gives both Bush and Gore the potential to have one justice to come over to his side. In this case, Justice Sandra Day O'Connor could cast the "swing" vote. She agreed with the majority in suspending the recounts, but her support of states' rights could lead her to conclude the Florida Supreme Court had the right to order them in the first place.

Also, Justice Anthony Kennedy could cast the deciding vote, focusing on the balance between the branches of the government. Both O'Connor and Kennedy were appointed by Republican President Ronald Reagan.

In either event, Bush and Gore are predicting uncertainty should the other side prevail. In briefs filed with the Court, both argue the legitimacy of the nation's next President will be left in doubt unless the dispute is cleared up decisively by the nine justices.

Adding to the pressure is a December 12 deadline for Florida to choose its electors. Their 25 electors must be named by then to ensure they will not be ignored when the Electoral College meets on December 18. The state Legislature may delay their decision until the Supreme Court rules, however.

Each side will receive 45 minutes to present their case. As with the last hearing, an audio tape of the proceedings will be provided by the Court after its conclusion.

Joining Scalia in the majority to stop the recounts were Chief Justice William Rehnquist, Sandra Day O'Connor, Anthony Kennedy, and Clarence Thomas. Joining Stevens in the dissent were David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Get the Supreme Court Order/Opinions:
Bush et. al. v. Gore et. al (US Sup Ct 531 US ____ 2000)

Get the Briefs:
Bush Brief PDF | Bush Appendix PDF
Gore Brief PDF

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