COURTING TROUBLE.

• Author: Lewis, Neil A.

In handing the election to Bush, did the Supreme Court follow the law--or partisan politics?

The day after the Supreme Court handed down one of the most momentous decisions in the history of the nation, one in which the Court by a 5-to-4 split ensured that George W. Bush would be the next President, one of the Justices found himself in a quiet room on the Court's second floor, fielding questions from a group of high school students.

The nine Justices rarely explain their rulings outside of their written opinions, but Justice Clarence Thomas had agreed to the session months earlier, certainly not anticipating it would come on the heels of a ruling that rocked the nation. One student asked him how much of a role a Justice's political affiliation has on the decisions the Court hands down.

"Zero," Thomas replied. "I plead with you that whatever you do, don't try to apply the rules of the political world to this institution."

But on this day, the Court was being assailed widely for behaving in what seemed a transparently political manner. The five Justices in the majority had for the first time ever essentially picked the nation's President. Many critics, including some of the Justices in the minority, were suggesting the majority had acted politically and damaged the Court's reputation.

The Court's action, wrote Justice John Paul Stevens, one of the dissenters, "can only lend credence to the most cynical appraisal of the work of judges throughout the land."

Justice Stephen Breyer, another dissenter, wrote: "Above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself. That confidence is a public treasure."

BORN IN THE SWAMPS OF FLORIDA

The controversy began in Florida, where according to the state's official results, Vice President Al Gore seemed to have narrowly lost the state and its 25 electoral votes. His lawyers sued the state, demanding a recount in several counties. They argued that many people who voted for Gore might not have had their votes properly counted because of faulty voting machines. The Florida Supreme Court eventually agreed, ordering the state to recount all of the "undervotes," those ballots in which a voter chose some candidates but the machine did not record a vote for President.

Bush appealed that decision to the U.S. Supreme Court, arguing that the recount violated the Constitution's guarantee of equal protection under the...