First, quite critically, seven of the Justices argued that the manner of the Florida recount violated the equal protection and due process clauses of the Constitution. What do they mean?
The use of "differing substandards for determining voter intent in different counties employing similar voting systems" raises serious concerns about treating each Florida voter the same, i.e., each voter does not have equal protection, nor is each voter guaranteed due process. This it seems to me is the core of the Court's decision: Seven justices believed that what was going on in Florida with so many varied methods for recounting was not fair and violated the US Constitution. Therefore, the Court struck down the Florida Supreme Court's ruling that ordered a recount of select undervotes in Florida counties.
Furthermore, the US Supreme Court's same seven justices argued that the Florida statute governing elections demanded that "any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. The date is upon us, and there is no recount procedure in place under the State Supreme Court's order that comports with minimal constitutional standards." The disagreement among these seven justices was not over the constitutional problem, they agreed on the equal protection issue. Instead, the issue was the remedy.
Two of the seven, Justices Souter and Breyer, believed that the US Supreme Court should allow the Florida Supreme Court to create an equal protection and due process standard for counting the undervotes and give them a chance to do so before next Monday, 18 December (when the Electoral College votes). Five of the justices (Rehnquist, Scalia, Thomas, O'Connor, Kennedy) believed that such a recount could not occur in this time frame and also, because the 12 December date had already passed, it was legally questionable whether such a recount could now proceed anyway. Therefore, these five in effect prohibited such a recount to proceed, even if it met what Breyer and Souter were saying. Thus, the decision is a major victory for George W. Bush and a major defeat for Al Gore.
Second, we must the meaning of the concept, "judicial activism." It is a concept that has been used quite frequently throughout this debacle. What exactly does it mean? To understand this concept is to give focus to one of the central concepts of our Constitution the Separation of Power. Simply put, the legislature (Congress) is to make law, the executive (The President, his Cabinet and the bureaucracy) is to execute or carry out the law and the judiciary (the Supreme Court and other federal courts) are to interpret the law. When the judiciary "makes' law and thereby usurps the legislative power, it is acting in an activist manner. Thus, allowing the judiciary to "make" law violates the separation of power and in effect makes the judiciary "more equal" than the other two branches. (This is what the Supreme Court did in Roe v. Wade [1973] and many other cases during the Warren Court of the 1960s). One cannot concentrate such power uniquely in the judiciary! What the US Supreme Court did was to interpret the order of the Florida Supreme Court and explain what the Constitution says on this issue and how it applies to the issues of equal protection and due process. The US Supreme Court justices are not acting as judicial activists; instead, they are explaining and applying the Constitution to this difficult election.
Third, this election has been a national civics lesson! As I explained on an earlier program, this election demonstrates the supreme value of the Electoral College. Our founders created a federal system in which the states and the national government share power. The Electoral College demonstrates the importance of the states and their critical role, large and small, in choosing the president. When you look at a map of the counties in this election, one sees that the popular vote of only a handful of major cities is almost equal to the entire rest of the country. The founders understood that the president must be elected by a system that preserves not simply the most votes but the votes that represent all regions, all states and all facets of the nation. A simple popular vote will not do that!
Again, an analysis of the nation's counties demonstrates that the Electoral College powerfully distributes power and influence to the states and maximizes their role in the election of the president. Finally, this election has demonstrated the nature of America as a democratic-republic, not a pure democracy. A republic is where the citizens elect representatives who in turn make law. Furthermore, it is the virtue of the representatives that make a republic work. That is why we hold our representatives to accountability and demand virtue and integrity from them. We have seen by negative example what a lack of virtue in a republic can do.
My prayer is that these civics lessons will be mastered by the American people that they understand the wisdom of the Electoral College, that they understand the nature of our democratic-republic and that they understand the role virtue and integrity play in our republic. Perhaps God is His mercy will use this crisis to teach us much about the need for character and virtue from our leaders.
