As everyone in the country (and probably in the world) already knows, the Supreme Court of the United States on Friday heard oral argument in. At stake is nothing less than who will become the next President of the United States, or so most people think. Of even greater importance, however, is the role the courts are to play in our constitutional system of government.
Last Wednesday, the Florida legislature invited me to provide testimony about its role under the Constitution. I began by reminding the members of the select committee that if the duty that lay ahead of them was somewhat unsettling, it was because we have grown accustomed in this century to having the courts have the final word on every political and legal issue in our nation. But that recent custom was not the founders' vision. As the country was reminded only two short years ago during the impeachment trial of President Clinton, in certain instances our Constitution assigns important duties to one or another of the political branches. The power to impeach, which is somewhat akin to typical executive function of bringing an indictment, is assigned to the House of Representatives. The power to try the impeachment charges, a quintessential judicial function, is assigned to the Senate of the Unites States. In both instances, the respective house of Congress is said to have plenary power over the matter. It is the last word, and no appeal to any court will lie.
Article II, section 1 of the Constitution is a similar provision. It provides that "Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors." Plenary power of the choosing of presidential electors is therefore assigned to the legislature of each state. Not to the courts of the state. Not to the executive. Not even to the people of the state (except in the sense that the legislature itself is the most direct representative of the people). The exercise of that power by the state legislature is subject only to compliance with other provisions of the United States Constitution.
Which leads us to another one of those rare constitutional provisions that assign the final word to some body other than the courts. For under Article II, section 1 (and later under the Twelfth Amendment), the votes of the electors are to be counted by the Congress. Not by the executive; not by the courts; not even by the Supreme Court. What is more, if two or more slates of electoral votes are transmitted to the Congress, it is Congress's job, and only Congress's job, to judge which of the competing votes shall be counted.
Yet on Friday the Supreme Court heard oral argument in a case challenging whether in fact the Florida Supreme Court had improperly intruded upon the powers delegated to the Florida legislature. One thing quickly became clear. Ted Olson, representing Governor Bush, backed away from his argument that Congress can, by statute, restrict the power assigned to the states. But the victory on that point, argued by Vice President Gore's attorney Lawrence Tribe, may well be a pyrrhic one, for the constitutional provision actually relied upon by Professor Tribe assigns the power not the the state as a whole (as Tribe argued), but to the state legislature. A certification ordered by the Florida Supreme Court, therefore, is a much contrary to that assignment of plenary power as was the argument being made by Governor Bush that a federal statute restrained what the state could do.
Of course, the Florida legislature remained free to delegate some of the decision-making responsibility, because its constitutional authority is to choose the manner in which electors are chosen, not necessarily to choose the electors itself. In exercising that authority, the Florida legislature developed a fairly elaborate statutory scheme, assigning an initial counting role to county canvassing boards, a certification role to the Secretary of State, and the role to judge any subsequent contests to the Florida judiciary. Whether those delegations have properly been complied with is the question currently before the Supreme Court. But it arguably ought not to be. The most crucial line of questioning on Friday came from Justice Souter, who probed the implications of this aspect of the case, which was presented to the justices not by either of the parties but in a friend of the court brief filed by the Florida legislature. The idea is called the non-justiciable political question doctrine, and it means that the Court will decline to issue a ruling on a case where the ultimate judgment in the matter has been assigned to another branch of the government.
Here, there are two political questions. The legislature of Florida gets to decide how much of its plenary power it wants to delegate to the Florida courts, and the Congress gets to decide whether a court-certified group of electors was lawfully certified pursuant to the law enacted by the Florida legislature. Given the partisan animosities that have developed on both sides of this hotly-contested case, Justice Souter's position offers a prospect of a resolution by the Supreme Court that would bring finality to the election but that would not embroil it in the politics of the election itself. Given the fact that the Court jealously guards its own institutional legitimacy, Justice Souter's questions may well suggest an opinion that the entire Court can live with. Quite simply, some things are best decided by not deciding.