MOST LEGAL ANALYSTS were astounded when the U.S. Supreme Court agreed to review whether the Florida Supreme Court violated federal law and the Constitution when it unanimously ruled that manual recounts in three Florida counties could continue until Nov. 26.
After all, this is the court that has tried to return political authority to state and local government at the expense of federal law.
Make no mistake about it: This is an activist Supreme Court, one that is conservative, however, not liberal. Five of its justices (Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Sandra Day O'Connor) believe that the size and power of the federal government have grown precipitously in relation to the states. Accordingly, they have, over the past five years, stuck together to overturn no fewer than 25 federal laws that they believed would have encroached on state governmental authority.
Only Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer are predisposed to give federal authority its wide-ranging reach -- an authority that has grown significantly since the New Deal.
In 1995, for example, Justice Rehnquist wrote for a 5-4 majority that Congress overreached its authority when it made possessing a firearm within 1,000 feet of a school a federal crime. Just two years later, the same five threw out a provision in the Brady Act that required state and local law enforcement officers to conduct background checks of gun purchasers. Justice Scalia wrote that the federal government could not force the states to comply with a federal directive. Congress later rewrote this part of the law so that federal officials now do the background checks.
The Constitution places in the hands of the states the procedures and policies by which presidential elections shall be organized. With a Supreme Court majority so well disposed to state-over-federal authority, why did the court accept the Bush campaign appeal? The answer is not difficult to glean, given the challenge now before the court: a provision of the Constitution and a federal law.
Article I, Section 2, of the Constitution says that each state shall select its Electoral College members "in such manner as the Legislature thereof may direct." Chapter 1, Section 5, of Title III of the United States Code, which became law in 1887, provides that all state electors shall be chosen in accordance "with laws enacted prior" to Election Day and that these laws "shall be conclusive, and shall govern in the counting of the electoral votes." Thus, the Bush campaign successfully raised two federal questions for the court to consider.
The Florida Supreme Court had held that provisions in the laws enacted before Election Day, in fact, conflicted with one another. One said that the secretary of state shall (or may) certify each county's votes seven days after the election; the other said that a candidate may contest election results in court with no deadlines set forth.
Did that court overstep its authority when it ruled that the recounts Al Gore requested in three counties could continue and, thus, "rewrite" the law after Election Day? Or did the court simply do what appellate courts are supposed to do, namely clarifying conflicting laws so that they make sense and bring order to a disordered elections process?
It is clear that the U.S. Supreme Court is worried about this case, given the third question it has asked each side to address: What are the consequences if the court were to decide to overturn the Florida court's decision?
The U.S. Supreme Court will undoubtedly rule narrowly to favor the autonomy of the states in terms of presidential elections. But it will also decide whether the state Supreme Court's attempt to resolve the inherent conflict in Florida law was a reasonable or reckless use of judicial authority.
Given its recent history, we may safely predict that the chief justice's majority of five will uphold the Florida court's ruling.
Jack Fruchtman Jr. teaches constitutional law and politics at Towson University.