Real loser of election may be the U.S. Supreme Court

BOSTON — So it ended in a late night cascade of decision and dissents that couldn’t even skim-coat the deep fractures in the magisterial Supreme Court. The same 5-4 majority that had stopped the recount made time the enemy of fairness. The clock and the court decided for Bush.

All through this last act, the transforming image was in the little boxes that came up on the TV screen beside the justices’ words and faces. One by one, the writing identified the justice by presidential patron and ideology.

Antonin Scalia appointed by Republican Ronald Reagan. Ruth Bader Ginsburg appointed by Democrat Bill Clinton. Rehnquist by Nixon, Thomas by Bush. They read like bylines and the subtext suggested that the judges and politicians were extensions of each other.

Not that it was a perfect match. David Souter, George’s boy, was not George W’s partisan. But the not-so-subliminal message was that if you knew the players and their parties, you’d know the outcome. If the personal is political, so is the law.

In Part I of this civics lesson, many Americans discovered that they were not voting for the president but for the Electoral College. In Part II, Americans who shared a reverence for the Supreme Court as "justice" removed from political wrangling have begun to doubt.

As one New York Times headline read with almost science fiction alarm: "Black Robes With Humans Inside Them." Watch out.

I suppose the revelation of the political human under the robe shouldn’t be so stunning. Throughout the court’s checkered history, it was often seen as political.

In the infamous Hayes-Tilden election that has now emerged from academic footnotes to cable news shows, no one dreamed of taking the contest to the court as a neutral forum. Indeed, the five justices on the 15-member election commission voted along party lines, handing the victory to Rutherford B. Hayes.

In the early Roosevelt days, the "nine old men" on that court fought the New Deal legislation so successfully that FDR tried to expand the bench to get a majority.

More recently, the nomination process itself, from Robert Bork to Clarence Thomas, has become more overtly political. In the 2000 election, the Supreme Court was a political "issue." Bush praised and Gore criticized Scalia and Thomas. We were told that the right to choose depended on the choice of justices.

Why then should we be disturbed? One historian insists that this uncovering of the justices is like discovering there’s no Santa Claus. It’s bad news, but it’s true.

Eric Foner, a Columbia University legal historian, puts it a bit more delicately, "The Supreme Court’s legitimacy rests on what everyone understands is a bit of a fiction, that these men and women are impartial, that they rise above partisan views and apply the law."

But for those of us who grew up in the afterglow of the Warren Court’s civil-rights decisions, that "bit of a fiction" has been part of a favorite and heroic story. Over a half-century, as Foner says, the court "cast itself as final arbiter of a lot of issues." But to make it stick, he points out, "people have to be persuaded the court is not operating as nine individuals who have views like any other nine individuals."

No one, of course, is worried that this court’s opinion was based on what seven men and two women had for breakfast. The majority justices have convinced themselves, I suspect, as they tried to convince us that they followed a neutral legal principle.

But as we link justice to political origins or ambitions, there is a measurable erosion of respect: After the court’s 5-4 first order to halt recounts, 53 percent of the public thought the belief was based mostly on politics, only 34 percent on the law. What will it be now?

Late Tuesday night, Justice Stevens’ dissent cut to the heart of it when he identified the real loser of this election: "It is the nation’s confidence in the judge as an impartial guardian of the law."

The loss of faith in the last respected institution is mourned even by those who already know there’s a human element to decisions, and that individual values underlie legal judgments. You don’t have to believe in Santa Claus to be dismayed as the court is recast — as not just political but partisan, as not just ideological but personal.

In these weeks, in a stadium full of sports metaphors about rules and games, one rings true. As Harvard law professor Martha Minow says with concern, "Somebody has to be umpire. If the umpire is a parent on one team, you can’t play anymore. The game’s over."

It’s said that the court follows the election results. The result of election 2000 is that satisfaction with the conduct of politics has slid all the way down to 25 percent. What a path the Supreme Court has chosen to follow.