Antonin Scalia

Election 2000

George Bush won. But at what cost to the law?

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The Supreme Court Shot Itself in the Foot While Shooting Down Al Gore

By Mike Godwin

For any constitutionalist, the proper reaction to the U.S. Supreme Court's majority opinion in Bush v. Gore is dismay. In dispensing with the Florida high court's efforts to resolve a confusing election-code tangle, derailing the election-contest process in Florida, and sidestepping the constitutionally established mechanisms for deciding disputed elections, the U.S. Supreme Court has done more than exceed the bounds of limited judicial power—it also confirmed the most cynical view of how the nation's top court operates.

At this point, if you suspect that I'm a Gore supporter, you're right. But before you dismiss my complaints as Democratic whining, let me explain that I haven't lost a moment's sleep over the fact that the other guy won. And it bothers me not a whit that the candidate who lost in the popular vote count won in the Electoral College. What's more, I don't even blame Bush or his team for what the Supreme Court did wrong—I'd be first in line to defend the right and prerogative of both the Gore and Bush teams to take their election disputes to state or federal courts.

In order to get a handle on what the Supreme Court did wrong in Bush v. Gore, it helps to look at the Florida Supreme Court's decision in Gore v. Harris—the 4-3 decision ordering a statewide manual recount of the "undervote" ballots in all counties in which those ballots had not already been manually tabulated. What you see in the Florida high court's opinions in Gore v. Harris—in both the majority opinion and in the dissents—are jurists laboring under excruciating constraints to get the right legal answers to a complex legal problem.

The truth about the Florida Supreme Court justices' handling of Gore v. Harris runs counter to a couple of myths purveyed by partisans and pundits about that high court, whose justices were appointed by Democratic governors. But the partisans and pundits are off-base. To underscore where the U.S. Supreme Court went wrong in Bush v. Gore, let's clear away the prevailing myths about the supposedly partisan Florida Supreme Court and give its justices credit for what they, unlike their federal counterparts, did right.

Myth One: The partisan, "Democrat-dominated" Florida Supreme Court screwed up its own state law in its eagerness to give the election to Al Gore, so the U.S. Supreme Court had to step in to correct the problem.

In reality, the Florida legislature had presented the courts with a crazy quilt of ambiguous and/or self-contradictory election laws. Additionally, the Florida Supreme Court was faced with a decision in which a trial court judge (in the word of the majority opinion) "did not make any findings as to the factual allegations made in the complaint and did not reference any of the testimony adduced in the two-day evidentiary hearing, other than to summarily state that the plaintiffs failed to meet their burden of proof."

Apart from seeming to dispense with his role as fact-finder, Judge N. Sanders Sauls also seemed to conflate the "protest" and "contest" phases of disputing an election in Florida (and the differing burdens of proof required in each phase). When a trial court judge reaches factual and legal conclusions in a summary, arbitrary, or legally questionable way, he creates the kind of issues that state appellate courts were created to sort out. And a fair-minded reading of the Florida Supreme Court's decision shows it struggling mightily to do so fairly and evenhandedly. Consider: Of the five arguments made by Gore's team, the Florida Supreme Court's four-justice majority accepted only three. Ruling against Gore on the other two arguments ensured that some additional Bush votes would be included in the final count, and that the additional 3,300 votes from Palm Beach County, most of which were thought to be for Gore, would not be counted. Also, three of the court's seven Democrat-appointed justices would have ruled against Gore altogether.

If the Florida Supremes were really the judicial-activist, partisan-Democrat meddlers its GOP critics say they were, they would have come up with some chad-centric standard as to how to interpret ballots that vote-counting machines rejected. Unfortunately for Al Gore, it was the refusal of the Florida Supreme Court to legislate a new, precise, statewide standard for interpreting ballots—a refusal to be a judicially active, changing-the-rules-in-the-middle-of-the-game kind of court—that led the U.S. Supreme Court to decide that Florida's election-code provisions violate the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

Myth Two: The Florida Supreme Court usurped the prerogative of the Florida legislature to decide how its state's electors are chosen, in violation of both state and federal law.

In fact, the Florida Supreme Court was doing just what it was supposed to do, consistent with Article II of the U.S. Constitution, with the federal elector-selection statute, and with state election law. It's true that Article II (later modified by the 12th Amendment) gives to state legislatures the power to pick a slate of electors for the Electoral College. But that doesn't exclude the state courts from playing any role. Federal lawmakers have always known that state judges might have to do so. Title 3, Sec. 5, of the U.S. Code, for example, contemplates that disputes arising from state elector-election contests may be decided by a state's judiciary, provided that the law under which that contest is decided was in place before Election Day. As it happens, Section 102.168 of the Florida Statutes—in place before Nov. 7—allows for Florida elections, other than those for the state's house and senate, to be contested in Florida courts.

The same Florida election statute authorizes a judge to "fashion such orders as he…deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under the circumstances." In other words, critics of the Florida Supreme Court's broad recount are giving no weight to the fact that Florida election law ex-pressly allows the Florida judiciary to do all sorts of things in handling election disputes. Anyone looking for a source of the Florida Supremes' authority to order a statewide manual recount of "undervotes" need look no further.

One of the rules that arguably governs how Florida courts must deal with contradictory directives of the Florida legislature is that a court must interpret the state election code whenever possible in ways that don't lead to absurd or meaningless results. For example, the courts should reject rigid, formalistic reading of ambiguous or contradictory provisions if such a reading doesn't serve the legislative purpose of a statute, or if it actively undercuts it. It's this sort of reasoning that led the Florida Supremes to conclude that the resolution of a contest requires only the statewide manual counting of contested "undervotes" rather than of all the votes (as the Bush team argued). What's the point of wasting time with uncontested ballots when the dispute is over a much smaller number of contested ones?

Maybe you don't buy that conclusion, but a conclusion that favors one political candidate over another is not in itself proof of partisanship. When you read the Florida Supreme Court's majority opinion, you see an immense effort to adhere to what the court believes the Florida legislature has defined its role in election-law questions to be. "This essential principle, that the outcome of elections be determined by the will of the voters, forms the foundation of the election code enacted by the Florida Legislature and has been consistently applied by this Court in resolving elections disputes," the Florida majority writes. Both the majority decision and the dissenters' opinions in Gore v. Harris, even though they reach differing conclusions, are reasoning in ways consistent with standard jurisprudential principles. As important, they are laboring to adhere both to their own judiciary's general body of precedent and to the specific legal and factual constraints of the case before them. I would not have been greatly troubled if the Florida Supremes had gone 4-3 against a statewide, court-ordered manual recount. That's because a constitutional theorist perusing the majority's and the dissenters' opinions in Gore v. Harris, can see a principled jurisprudential path to either result.

The picture of the Florida justices' reasoning processes we get from both the majority and the dissents casts the U.S. Supreme Court's majority in Bush v. Gore in a highly unflattering light. Unlike the Florida justices in Gore v. Harris, the majority in Bush v. Gore seems to have acted as partisans, exceeding the well-understood limitations on federal judicial power. The U.S. Supreme Court majority showed only nominal reluctance to make new law (by finding that the 14th Amendment's Equal Protection clause applies to vote-counting standards) and to assert control over the outcome of a disputed election. Unlike the Florida courts, the federal courts have no express role in disputed elections, and in fact both the Constitution and federal law give Congress, not the federal courts, the fundamental authority to resolve disputes involving presidential elections. What's more, the U.S. Supreme Court stepped over the lines that supposedly constrain federal court authority in the service of plainly shallow and inconsistent reasoning.

The U.S. Supreme Court has no special grant of authority to deal with election issues—not even those arising in federal elections—absent some larger federal statutory or constitutional interest. At bottom, the U.S. Supreme Court is one of defined and limited power, as spelled out in Article III of the U.S. Constitution. You can tell how eager the majority was to involve itself in Bush v. Gore by how much effort the justices in the majority gave to finding a basis for their jurisdiction, and by how shallow and problematic the arguments for such jurisdiction turned out to be.

Ultimately, the attempt to find a basis in Title 3 of the U.S. Code, which sets up a statutory framework for Congress' handling and interpretation of the states' slates of electors, was a washout. Only three justices were willing to stomach the transmuting of these federal laws, which were designed to mandate and limit Congress' conduct, into a limitation on state courts. Still, it's disconcerting that these three justices, heretofore identified with both the states' rights theory of federalism and with a focus on the plain text of the statutes they must interpret, were willing to abandon those theories in service of a highly creative "interpretation" of a federal statute—one that, had it gotten two more votes, would have amounted to a bald federal pre-emption of the states' authority to control their own process of selecting electors.

The equal protection theory that ultimately led the U.S. Supreme Court to effectively decide the election in Bush's favor is not in principle so jurisprudentially perverse as the Title 3 theory, and ultimately some elements of the equal protection theory won the support of seven of nine justices. Here the perversity isn't inherent in the theory itself but in what five justices were willing to do in the name of the 14th Amendment's Equal Protection clause.

The majority's equal protection argument begins with the well-established principle that the 14th Amendment's Equal Protection clause prohibits state governments from treating some citizens worse than others when that different treatment is based either on their identity and background or violates "fundamental fairness." Voting is a basic right, so the fact that some Florida counties use different standards than other Florida counties when participating in a statewide manual recount of "undervotes" at least raises the possibility that some citizens' rights under the Equal Protection clause have been violated. Similar arguments may be grounded in the Florida Supreme Court's focus on undervotes, which might be said to be unfair to those whose ballots were rejected as "overvotes" (with more than one presidential vote apparently marked on the ballot), or in the fact that all ballots, rather than just the undervotes, were recounted in some but not all counties.

Who can argue with the general principle that no person's vote should count more or less than any other's? But the devil's in the details, and both the factual situation in Florida and the remedy imposed by the U.S. Supreme Court raise doubts about how much the five justices who voted to stay and later to bar the manual recount really cared about the equal protection or "fundamental fairness" issues.

For one thing, it's unclear that the differences in ballot-counting standards among Florida counties add up to a constitutional violation of such magnitude that the U.S. Supreme Court needed to step in. Whatever rule might be used (counting dimpled chads, say, or refusing to count them), the rule itself won't inherently favor one candidate over another and thus won't favor one candidate's voters over the others'.

For another, different counties in Florida use different kinds of voting machines and ballot-counting machines, with the now well-documented result that some systems reject more legal ballots than others do. The Supreme Court's order blocking manual recounts ensured that votes in one county are more likely to count than votes in another county.

Compounding this latter problem is the fact that ethnic or racial minorities may be more concentrated in counties that use the less-reliable voting-machine technologies. Thus, blocking manual recounts may have had a disproportionate effect on certain voting minorities. This isn't the result a court is normally looking for when it invokes the Equal Protection clause and claims to be protecting fundamental rights.

As to the purported neglect of "overvotes," the dissenters rightly pointed out that no one had presented evidence of an overvote problem. In other words, the majority was so eager to find an equal protection violation that they assumed facts not in evidence.

The majority was aware of these details, which strongly suggests that these five justices' invocation of the Equal Protection clause was opportunistic and maybe even hypocritical. In effect, the Supreme Court was saying "We had to refuse to count your (possibly incorrectly rejected) votes in order to vindicate your right to have your votes counted fairly."

Which brings us to the question of what vital, constitutionally significant interests were being served by the U.S. Supreme Court's decision to block the Florida Supreme Court's statewide manual recount of undervotes, with the result that some votes would never be counted in time to affect this election? The best the justices in the majority can offer is this, in Scalia's concurrence to the initial stay of the recounts: "The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election." Earth to Scalia: If improperly conducted recounts risk generating such a cloud, a court-mandated halt of the recounts is not exactly clear-skied if legitimacy is your concern.

Another notion the five justices advanced was that the ticking of the Electoral College deadline clocks meant that the Supreme Court needed to impose finality on the election dispute. But it's hard to see how this need for finality, even if true, required that the U.S. Supreme Court prevent the Florida Supreme Court from even trying to craft a remedy consistent with the finding of an equal protection violation. Suppose Florida's high court had been unable to resolve the issue by any deadline—so what? As Justice Breyer pointed out in his dissent, "The Constitution and federal statutes themselves make clear that restraint is appropriate. They set forth a road map of how to resolve disputes about electors, even after an election as close as this one. That road map foresees resolution of electoral disputes by state courts. See 3 U.S.C. 5 (providing that, where a 'State shall have provided, by laws enacted prior to [election day], for its final determination of any controversy or contest concerning the appointment of…electors…by judicial or other methods,' the subsequently chosen electors enter a safe harbor free from congressional challenge). But it nowhere provides for involvement by the United States Supreme Court."

If the blocking of the recount, which resulted in the effective erasure of many citizens' votes, was not enough to cast doubt on the Supreme Court majority's commitment to equal protection and fundamental fairness, the majority's attempt to limit the impact of its newly discovered equal protection issue to this particular case would be. "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," writes the majority in its unsigned opinion. In other words, the majority seems to be saying, we believe Florida's election code issues add up to an equal protection problem only insofar as they raise the possibility that George Bush might not win Florida. But don't expect us to be bound by this decision in future cases.

We'll get the chance to see how well the majority's commitment to this equal protection issue holds up. Despite the justices' attempt to limit the effect of this new doctrine, it will be an invitation to future candidates to mount federal equal protection challenges to every state-based resolution of an election dispute. Finality, the thing the majority seemed to value more highly even than citizens' rights to have their votes counted, may be yet another casualty of Bush v. Gore, as state election-dispute cases increasingly lead to simultaneous or subsequent litigation in the federal courts.

But the biggest casualty of all is the credibility of the Supreme Court as a principled arbiter of the Constitution and of federal law. It's a shame that the Court did not meditate long enough on one of the key observations from the Florida Supreme Court's Chief Justice Wells, who warned in his dissent in Gore v. Harris of the hazards of a court's being too willing to intervene. "We run a great risk that every election will result in judicial testing," wrote Wells. "Judicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters—not by judges."

Whatever one may think of the Florida high court's handling of the election cases, there's no disputing that when it comes to lack of judicial restraint, it's the U.S. Supreme Court that takes the prize.

Constitutional litigation will return to normal, but the political battles are just getting started.

By Richard Epstein

What is the moral of the Great Florida Recount? Bush supporters, whether devoted or tepid (I fall in the latter category), may be personally relieved that the outcome lined up with their votes. But partisan politics aside, we can learn larger lessons from this classic judicial brawl. One lesson is that tragedies and near tragedies develop one small step at a time. Each side is rightly and mightily distressed with the prior machinations of the other. Each is therefore emboldened to take the next small step. Each step prompts the next until we come to the brink of a constitutional crisis.

That's just what happened starting November 7, 2000. Most pundits thought Al Gore's prompt request for a hand recount in friendly precincts would prolong the election by perhaps another week. They were the same type of folks who in August 1914 thought that British troops would return home from France by Christmas. What the election optimists missed is that both sides of this close conflict deeply believed that they had right on their side.

That is the second lesson of Florida's long count. The prolonged grudge match between George W. Bush and Al Gore offers ample confirmation of the endurance of primal instincts in human affairs. In our over-intellectualized analysis of politics, we place too much emphasis on the word "political" and too little on the word "animal" in the phrase "political animal." Alas, nature's first maxim of survival is to avoid a fair fight when both sides run the risk of serious injury. Nature therefore codes all animals to hold their ground when right, and to slink away when wrong. That game plan works pretty well except when each side to a dispute thinks in moral terms and believes it is right. Then a battle royal ensues.

The mutual sense of being wronged intensified the conflict, as did the fact that each side needed to make only the kinds of arguments most congruent with its legal philosophy. Democrats take an expansive view of language and harbor a yen for social justice, while Republicans gravitate toward plain-meaning interpretations and the rigorous application of formal rules. Truth is, this contest would have been over sooner if the litigating position of each side had required it to embrace the legal philosophy congenial to the other. But instead, the striking correlation of their legal strategies to their deepest psychological predispositions goaded both sides to fight harder.

The initial Gore response was an irritated expression of disbelief at the large but confused "butterfly ballot" vote for Pat Buchanan in Palm Beach County. But since Democratic operatives had prepared this ballot (to make the print easier for seniors to read), the Gore people could not lash out at Republican misdeeds, nor rectify the error in court. They did, however, think that the Republicans owed them one on the recount, and thus were emboldened to pressure canvassing board officials in Broward and Miami-Dade counties to run a hand recount that paid ever-greater homage to dimpled chads.

Republicans reciprocated in kind because they had no remorse for having won Florida fair and square, notwithstanding Democratic blunders. They showed their true colors when Florida's Secretary of State Katherine Harris eagerly exercised her discretion to deny the contested counties a waiver of the one-week deadline established for recounts. After all, the initial review of the ballots in Broward and Palm Beach counties resulted in only about 2 percent of the "undervote" being converted into votes. Thereafter, the consistently more lax standards in Broward County converted dimpled chads into 567 net Gore votes. Palm Beach County followed a more erratic but conservative course, which in the end produced, depending on who is believed, between 176 and 215 net Gore votes.

Clearly the choice of standards mattered. To forestall such erratic behavior, what Harris should have done was first to allow more time to complete a recount, but then to insist that manual recounts did not change the standard for a valid vote, which at least required that light go through the hole. Instead she neglected to give any principled defense of her position, which made her vulnerable to attack. In fact, her legal argu-ments were strong: Florida election law requires an "error in tabulation" to trigger the hand recount, and the machines had worked just fine.

The Florida Supreme Court, however, was now poised to do a bit of high-stepping of its own. The state election law was poorly drafted. Yet it is best read to say that the canvassing boards had to present tallies to the secretary in a week, though leaving her with the power to extend the deadline. The Florida Supreme Court exploited the textual ambiguity to come up with a solution that was inconsistent with any plausible reading of the statute. In a good day's work, that court read "error in tabulation" to allow Gore to challenge the traditional standard for a valid vote. It brushed over the obvious statutory concern with finality in election disputes; it authorized highly subjective hand counts without any safeguards against favoritism and bias; and out of whole cloth it created its own new November 26, 2000, deadline for finishing the hand count.

The Republican faithful on and off the U.S. Supreme Court noted the obvious distortions of the statutory scheme. But they were faced with the same dilemma that had just sapped the legitimacy of the Florida Supreme Court: The higher a case goes in the judicial system, the narrower the grounds for review, and the stronger the arguments needed to sustain a reversal. The Florida Supreme Court did not meet that burden when it overturned the secretary of state, so the conservative five on the U.S. Supreme Court faced the next round of the ongoing realpolitik dilemma: Play the game straight at your level and lose to the machinations of the judges below, or stretch the law a bit at your level, if necessary, so as to undo their error with some judicial innovations of your own. The case had not gone far enough to stop all litigation in Florida cold, so a grumpy but unanimous U.S. Supreme Court asked for the Florida Supreme Court to explain itself—only to set the stage for a bigger fight next time round. Nine troubled justices retained peace without honor, through delay.

Back in Florida, business continued at a brisk pace. The canvassing boards in the key Florida counties all responded differently to the November 26, 2000, deadline. Broward finished its count and came up with a trove of over 500 new Gore votes. Miami-Dade called off its count, and Palm Beach County came within two hours of finishing its own recount. Harris, ever jealous of the prerogatives of her office, rejected the Palm Beach request for delay, and certified the Bush victory. That action promptly moved the case from its protest phase to its contest phase.

This move is larger in legal than popular estimation. A protest leads to more administrative work, but a contest requires a full-dress trial, complete with fact witnesses and cross-examination. The contest trial was held before Judge N. Sanders Sauls. who, consistent with the first Florida Supreme Court decision, found that the canvassing boards had not abused their discretion in the extended recount phase. He also found, more debatedly perhaps, against the Gore team on the grounds that they failed to meet the probabilistic burden of proof required for a contest.

Normally, a Supreme Court on appellate review is hard pressed to overturn a trial judge who has found in favor of an administrative official. But by a 4-to-3 vote, the Florida top court confounded most people's expectations by deciding, first, that every vote must count when the intention is clear, and second, that a recount of the undercounted votes throughout the state must be conducted under judicial supervision. The new dose of uncertainty could only benefit Al Gore.

Once again, the majority of the Florida Supreme Court twisted Florida law by ordering what was in essence a judicial continuation of an administrative recount. But at the contest phase, simply having election officials count ballots doesn't cut it. A trial was required to allow both teams to call local officials to the stand as fact witnesses, subject to cross-examination. That trial also should have allowed the Bush forces to challenge the legality of the undervote recount in Broward, Miami-Dade, and Palm Beach, but the four-member majority simply added those Gore votes as-is to the final tally, without taking any evidence at all from the Bush team. In essence the Florida Supreme Court appointed Judge Terry Lewis as de facto secretary of state to complete a recount, but made no provision for it to be challenged thereafter in any full-fledged contest.

So the case went up again to the U.S. Supreme Court. Only now the judicial dilemma was still more acute: If a bare majority of the Florida Supreme Court could have succeeded with its maneuvers, then Al Gore might well have been handed the presidency. In response, the five-member majority of the U.S. Supreme Court played a tough game of tit-for-tat. They stayed the Florida recount under a broad definition of "irreparable injury" to avoid, as Justice Scalia said, casting a "cloud" over the entire election. Justice delayed was, in a sense, justice achieved. The stage was set for a full-scale reargument, where once again the conservative majority had to show not just that the Florida Supreme Court was wrong, but so terribly wrong as to offend some constitutional guarantee.

The fits-and-starts of the Florida recount and contest procedure presented two lines of attack. The five conservative justices (Rehnquist, O'Connor, Scalia, Kennedy, and Thomas) invoked what can only be described as the broadest equal protection test known to man, for which they have been skewered by an enraged liberal press. Doctrinally, these critics have a real point. Normally, it is critical to know just what class of persons is disadvantaged by unequal treatment. That question can be answered with tolerable certainty in the "one-man/one-vote" cases decided in the 1960s. In those cases, residents of urban counties had a tiny say in state governance compared to their country cousins. But in the Gore/Bush bash, it is odd to lump all undercounted voters, whoever they might be, into one protected class, especially since any Bush undervoters were quite happy to see their votes uncounted so long as the Gore undervoters were equally ignored.

Worse still, this weird equal protection theory should not have ended the case. Rather, it cried out for the remand sought by Justices Souter and Breyer so that the Florida Supreme Court could establish a uniform standard of its choosing, and thus throw the election to Gore by declaring all dimples equal and valid. So the majority of the U.S. Supreme Court deftly cut off that possibility by noting that, under Florida law as interpreted by no less than the Florida Supreme Court, the overriding intention of the Florida legislature was to choose a slate of electors before the December 12, 2000, date (after which the slate could be challenged in Congress). The real decision was 5 to 4, not 7 to 2 as some conservatives have claimed.

The conservative core (Rehnquist, Scalia, and Thomas) went one step further by invoking Article II of the Constitution, which governs executive power. That article provides that the electors in each state shall be chosen "in such Manner as the Legislature thereof may direct." Florida's law calls for a popular vote under a complex election code that Florida courts interpret. This novel constitutional claim does not necessarily turn on bad faith conduct by the four Florida judges, but rather it becomes necessary to show at least that their decision deviated so far from the statute as to constitute new law of judicial origin. Take this line, as the conservative core did,and the judicial process ends with Katherine Harris' certification of George Bush.

Can that extreme claim be defended? In a low-stakes contest no one would bother to cast aspersions on the majority of the Florida Supreme Court. In this high-stakes case, aspersion looks well-grounded, if it matters, given how the Florida Supreme Court took over and continued the recount started by the canvassing boards. The Florida court created a new scheme for judging elections that can be referred back to the original statute solely by fanciful interpretative footwork. But for the U.S. Supreme Court majority, the operative principle may well have been only this: One bad turn deserved another. And thus the 5-4 majority ran out the electoral clock by overriding a 4-3 Florida majority.

For the public, this struggle was no doubt like a football game that went down to the wire but did not make it to overtime. The spectacle is over, and we can all move on. But academics and politicians have longer memories that lead to endless postmortems. Hyperbolic politicians will seize the platform to denounce the outcome. Key black leaders and liberal commentators have already mindlessly denounced Bush v. Gore as another Dred Scott decision, without acknowledging just how ugly a situation Dred Scott created.

This overblown rhetoric will die down with the next political flap. Still, liberal legal academics will linger on to rub conservative faces in the mire of their newfound activism. But they will have a practical objective, which is to give the next open U.S. Supreme Court seat to a political moderate. In the courts, ambitious lawyers will find constitutional meaning in administrative flip-flops until the Supreme Court states that this equal protection dog barked only once; constitutional litigation will quickly return to normal.

What remains is the uneasy aftertasteof this big decision. But ultimately that will prove more congenial to sober minds than would the alternative of an indefinite and prolonged struggle lasting into the next year. Remember that when two animals fight to the death, sometimes both die of their wounds. Here at least the Republic marches on, chastened, weary, and wiser. It was far from pretty. But it could have turned out far uglier than it did.