Florida’s lawless court showed bad judgment

  • George Will / Washington Post columnist
  • Saturday, November 25, 2000 9:00pm
  • Opinion

"The accumulation of all powers legislative, executive and judiciary in the same hands … may justly be pronounced the very definition of tyranny."

— James Madison, Federalist 47

WASHINGTON — Al Gore’s assault on the rule of law, crowned with success by Florida’s lawless Supreme Court, has now become a crisis of the American regime. See above.

In asking that court on Monday to do what Gore wanted, attorney David Boies uttered a notable understatement: "I believe that there is going to have to be a lot of judgment applied by the court." Consider the radicalism — it far exceeds routine judicial activism — of what the court did with its "judgment."

Barry Richard, a George W. Bush lawyer, accurately told the court that Gore was asking it to read a statute, which says returns "must" be filed by a date and time certain, as though it says returns may be filed by a date and time certain. And, Richard said, Gore was asking the court to read a statute that says Florida’s secretary of state "may" accept late returns as though it says she "must" accept late returns. So, Richard said, in order to rule for Gore the court must "disregard the well-established and long-standing doctrines" regarding the "clearly erroneous" standard, and regarding "implied repeal."

The "clearly erroneous" standard is this: For a higher court to overturn the ruling of a lower court, it must find the lower court clearly erroneous. In this case, it must find that the trial court had no reasonable basis for ruling that Florida’s secretary of state did not abuse her discretion when she acted as though the statute reads the way it actually does, rather than the opposite way that Gore wants it to be read. Furthermore, when a court reads a statute as having a meaning directly contrary to its clear language, the court implicitly repeals the statute.

So the court, in a trifecta of willfulness, traduced all three branches of government. It says it acted out of respect for "the will of the people." But not the people’s will as expressed by the people’s elected representatives in the Legislature that wrote the election laws. And not the people’s will as expressed in the election of the secretary of state to enforce the laws.

During oral arguments Monday, a justice mused, "Are we just going to reach up from some inspiration and put it down on paper?" Which the court did Tuesday night, saying the secretary of state could not enforce the statutory deadline for receiving vote totals, because, the court said, that deadline made recounting impossible. So the court plucked from the ether a Sunday night deadline. Then on Wednesday, Miami-Dade County officials threw up their hands and declared additional recounting impossible because of the court’s new deadline. Chaos, courtesy of the court.

In Federalist 81 Alexander Hamilton said the "supposed" danger of judicial "encroachments on the legislative authority" is a "phantom." In Federalist 78 he pronounced the judicial branch the "least dangerous" to political rights because it neither wields "the sword" nor controls "the purse," and hence "can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

No, a lawless court, using the force of its willfulness to impose its judgment, also depends on the deference of both political branches. Will Florida’s Legislature defer to the Supreme Court’s usurpation of legislative powers in the service of Gore’s attempted usurpation of the presidency?

By legislating — by airily rewriting Florida’s election law and applying it retroactively to this election — the court has thrown down a gauntlet to the state’s Legislature. Responding in the climate of cynicism and trickery Gore has created, legislators could decide that deference now would betoken decadence; they could exercise their legal right to select Florida’s presidential electors. If in the third week after the election Gore at last manages, by getting selected ballots judged by frequently adjusted standards, to manufacture enough votes to take the lead, his electors will be no more legitimate than any others created by raw assertions of power.

Addressing the court on Monday, Boies, speaking for Gore, used the language of contemporary liberalism’s relish for judicial imperialism. Nine times Boies urged the court to wield its "power." In doing just that the court has refuted Hamilton’s sanguine assurance (in Federalist 81) that although "misconstructions and contraventions of the will of the legislature may now and then happen," they can never "affect the order of the political system." We are a sadder but wiser nation now.

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Opinion

toon
Editorial cartoons for Sunday, Feb. 9

A sketchy look at the news of the day.… Continue reading

bar graph, pie chart and diagrams isolated on white, 3d illustration
Editorial: Don’t let state’s budget numbers intimidate you

With budget discussions starting soon, a new website explains the basics of state’s budget crisis.

A young man carries water past the destroyed buildings of a neighborhood in the Gaza Strip, Feb. 2, 2025. President Donald Trump’s proposal to “own” the Gaza Strip and transfer its population elsewhere has stirred condemnation and sarcasm, but it addresses a real and serious challenge: the future of Gaza as a secure, peaceful, even prosperous place. (Saher Alghorra/The New York Times)
Comment: ‘Homeland’ means exactly that to Gazans

Palestinians have long resisted resettlement. Trump’s plan to ‘clean out’ Gaza changes nothing.

Rent stabilization can keep more from losing homes

Thank you to The Herald Editorial Board for its editorial, regarding rent… Continue reading

Don’t pamper young criminals with lenient sentences

I want to give a shout out to Todd Welch for his… Continue reading

Comment: Democracy depends on support of local journalism

A state bill provides funding to support local news outlets through a modest tax on tech businesses.

Comment: Love is intoxicating; romance doesn’t have to be

Navigating sobriety while dating, with Valentine’s Day coming up, is possible and fulfilling.

Comment: State attempt at single-payer health care bound to fail

Other states have tried, but balked when confronted with the immense cost to state taxpayers.

Curtains act as doors for a handful of classrooms at Glenwood Elementary on Monday, Sept. 9, 2024 in Lake Stevens, Washington. (Olivia Vanni / The Herald)
Editorial: Schools’ building needs point to election reform

Construction funding requests in Arlington and Lake Stevens show need for a change to bond elections.

FILE- In this Nov. 14, 2017, file photo Jaìme Ceja operates a forklift while loading boxes of Red Delicious apples on to a trailer during his shift in an orchard in Tieton, Wash. Cherry and apple growers in Washington state are worried their exports to China will be hurt by a trade war that escalated on Monday when that country raised import duties on a $3 billion list of products. (Shawn Gust/Yakima Herald-Republic via AP, File)
Editorial: Trade war would harm state’s consumers, jobs

Trump’s threat of tariffs to win non-trade concessions complicates talks, says a state trade advocate.

A press operator grabs a Herald newspaper to check over as the papers roll off the press in March 2022 in Everett. (Olivia Vanni / The Herald file photo)
Editorial: Push back news desert with journalism support

A bill in the state Senate would tax big tech to support a hiring fund for local news outlets.

Forum: Requiem for a lost heavyweight: Sports Illustrated

SI, with Time and NatGeo, were a holy trinity for me and my dad. Now, it’s a world of AI clickbait.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.