“Importantly to me, I have a deep and abiding concern that the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this Court as an institution.” Chief Justice C. J. Wells of the Florida Supreme Court, December 8, 2000.
On the fourth of December the US Supreme Court fired unanimous warning shots over the heads of the Florida Supreme Court justices for acting like a kangaroo court. Rather than publicly embarrassing their Florida colleagues, the US Supreme Court simply asked for clarification of the Florida Supreme Court’s decision, while at the same time vacating the Florida court’s decision to order recounts. Apparently four of the seven justices have no shame and decided to hop blindly into yet another ill-advised decision that the Florida chief justice said “has no foundation in the law of Florida as it existed on November 7.”
At times courts are required to make unpopular decisions as they defend the rights of individuals. By definition, unpopular people or causes are the ones that require the most protection from majorities. Since judges sometimes stand against the popular will, deference to judicial authority rests upon a common acceptance of judicial temperance. When judges overreach, when they extend their decisions beyond what is minimally necessary to protect rights or adjudicate between rights, they usurp legislative and executive power. It is not an issue of whether judicial policy is wise or foolish. Rather, by capriciously circumventing the duly elected branches, zealous judges, who yield to the temptation of the law, bring into real question whether there is indeed the rule by the consent of the governed. Do this too often and the due deference to the authority of the courts will wither and we will no longer be afforded the necessary protections of the courts.
Judicial activism invariably leads to additional animosity and acrimony. If the Florida Supreme Court had not prevented the Secretary of State of Florida from certifying the presidential election on November 14, it is likely that Gore would have been under intense political pressure to concede. However, the extension granted by Florida’s Supreme Court for manual recounts gave time for positions to harden making it more and more difficult to ultimately accept either George Bush or Al Gore as the next president. Even if Gore had proceeded with a contest after certification, there would have been more time available for trial and due consideration of various potential remedies.
Because the Florida Supreme Court truncated the contest time period, we now face the prospect of election officials racing willy-nilly trying to interpret unclear ballots with no meaningful guidance from the Florida Supreme Court as the clock rapidly ticks away toward the December 12 deadline. The Florida justices are now required to act quickly because they acted too hastily and precipitously before. The chief justice of the Florida Supreme Court has belatedly realized the political danger inherent in the behavior of four of his fellow justices. He rightly worries that the recent Florida decision “will do substantial damage to our country, our state, and to this Court as an institution.”