WASHINGTON — Is the Rehnquist Court in danger of repudiating its own states' rights philosophy if it sides with Texas Gov. George W. Bush and overrules the Florida Supreme Court's determination of state election law?
Or instead, would it be upholding the conservatives' favorite legal principle: that legislators, not judges, should make the rules?
Those questions have been raised often since Friday, when the U.S. Supreme Court took up the Florida election case. The crosscurrents have kept legal experts guessing as to what's behind the court's intervention.
It escaped no one's attention that the lawyers representing each campaign showed that they could change their rhetoric faster than the politicians changed wardrobes.
The Republicans, who usually oppose federal judges' meddling in state affairs, told the Supreme Court that it must bring "finality" to the messy dispute in Florida.
And liberal Harvard law professor Laurence H. Tribe, representing Vice President Al Gore, became a champion of "federalism," the notion that states should be free to make their own decisions. He defended "each state's right to organize its election" without interference from Washington.
But the simple split between states' rights and national power may miss what is at issue, at least in the eyes of Chief Justice William H. Rehnquist and his colleagues.
Over his long career, Rehnquist has insisted that hard decisions should be made by elected state lawmakers, not judges. Looked at through this prism, a Supreme Court ruling for Bush could be seen as a victory for the Florida Legislature over the state's high court. This would be in keeping with the principles espoused by the chief justice and his fellow conservatives.
At the same time, such a ruling would be true to the partisan preferences of the Republican-dominated high court. For many, the line between law and politics in the Florida election dispute looks increasingly blurry.
GOP Charged Bias on Florida Court
Last week, Republicans wasted no time in criticizing as politically biased the Democratic-dominated Florida Supreme Court when it ruled for Gore and extended the deadline for the completion of hand recounts. By late Sunday, however, that decision looked to be less of a victory for the Democrats; Palm Beach County had failed to meet the deadline, and Miami-Dade County officials, believing they would not have time to finish their hand recount, suspended it.
