What The Court Should Have Said

The wonderful thing about the U.S. Supreme Court--the reason it inspires such reverence--is its aversion to politics and chatter. Justices do not appear on "Meet the Press" or host "Saturday Night Live." Most of us, buying breakfast foods in the local Safeway, would be oblivious to a Justice Breyer or a Justice Kennedy standing next to us, filling a cart with Special K. The best footage we saw of these people all day yesterday were the quick shots of two justices fleeing from the Court in their family sedans--that they drive themselves, for Heaven's sake.

At a time like this, however, political sensibility may be what's missing. No doubt the Justices who formed the majority in last night's per curium decision feel they offered a sound judicial solution, not a political one. But the public, fueled by mass media, will remember this as the court decision that declared George W. Bush the rightful president, as surely as Brown v. the Board of Education is known to have ended segregation in schools. But presidential anointing is not what the Court did. And the justices might have done themselves and both candidates a service by addressing that very point.

What the Court held here is actually pretty simple. First, the Florida recount ordered by the state Supreme Court was a nightmare that didn't meet constitutional standards because every county had its own take on what makes a ballot valid. The Florida law that provides for recounts may be great if you're choosing a county sheriff, but it's a disaster if you're voting for a statewide or national office. Second, even if you could set a uniform standard for counting the ballots that were rejected by those awful little machines, it's too late. Florida has run up against federal statutes passed in 1887 that say clearly that the courts can't mess with a presidential vote beyond December 12. Time's up.

That's all perfectly legitimate. But here's what the Court's opinion could have said, and didn't: "We have no idea who won in Florida. We're not going to know. We really don't know who won this election. We're not going to know. But the selection of a president is supposed to be a political process governed by law, not a legal process tainted by politics. What we're saying is there is simply no further role for the courts to play here. It's up the candidates, the voters and their representatives to settle that."

The justices came close. The majority opinion noted that there is a disturbing margin of error in counting ballots by machine: about 2 percent, or greater than the margin of the Florida election. But the small fact that the election remains unresolved was left implicit. Only Justice Stevens, in his fiery dissent, made the point that "we may never know with complete certainty" who won. Had the Justices in the majority said the same thing, they might have incited further protest or Congressional chaos. But they also would have distanced themselves more directly from the damaging notion that they have, for the first time in history, chosen a president. And they would have referred the issue to the people and their elected, accountable representatives--which is where it belonged in the first place.

The court will give us finality. But having a resolution is something altogether different. The justices know this, and all politics aside, perhaps they should have said so.