As a result of Friday’s Florida Supreme Court decision, Al Gore may be sworn in as president on January 20. If he is, he will receive our best wishes upon assuming the burdens of office. We will support his policies when we think they are right for the country. We will pay proper respect to the office of the presidency. We will hope (some will pray) that Al Gore’s presidency proves a success, and that it leaves the United States of America a stronger and better nation.
But some of us will not believe that Al Gore has acceded to the presidency legitimately. The action of the Florida court is not constitutionally defensible. We will therefore continue to insist that he gained office through an act of judicial usurpation. We will not “move on.” Indeed, some of us will work for the next four years to correct this affront to our constitutional order. This does not mean simply, indeed it does not mean primarily, defeating Al Gore in 2004. It means defeating the understanding of the rule of law, the role of the courts, and the meaning of the Constitution embodied by this decision.
It would of course be better if this decision were reversed in the next few days. The U.S. Supreme Court may save us from its Florida brethren. If it does not, the Florida legislature, and then the U.S. Congress, may act under the Constitution and under federal law to vindicate the Constitution and the rule of law.
But the U.S. Supreme Court may fail to act, and there will then be enormous pressure from friends of the judiciary to yield to the Florida court. The assault from the law schools, the media, and all enlightened quarters on the state legislature, if it moves to act, will be massive. If our elected officials find it in them to stand up to such an assault, it will be a healthy moment for the country.
Forty-two years ago, the U.S. Supreme Court claimed in Cooper v. Aaron that “the federal judiciary is supreme in the exposition of the law of the Constitution.” This is not so — nor is a state judiciary supreme in the exposition of a state constitution — though we have acted as if it were for two generations. While the judicial branch has the obligation to interpret laws in light of the Constitution, the other branches have an equal obligation to act consistently with the Constitution; and no branch is superior to any other. In practice, the role of the Supreme Court (or of state supreme courts) tends to give them, on any given issue, the last word. But the last word on any particular case cannot be the last word forever.
As always, Lincoln put it best, in his first inaugural:
I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases, by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.
Perhaps the Florida state legislature and the U.S. Congress will now rise to the occasion. But perhaps not. If not, we will have a presidency achieved by litigation and judicial fiat. The best that can be hoped for under such circumstances is that this illegitimately gained presidency will give rise to a determination on the part of the people to resume the burden and the privileges of self-government. Two generations of judicial usurpation is enough.
William Kristol
