"Why are manual recounts inherently subjective in Florida, yet they are law in Texas?" (This last question was in fact asked by the Florida Supreme Court. In an answer that gives lawyers a bad name, the attorney fighting the recount said he didn't know anything about Texas law.)
When a litigant in court makes inconsistent arguments, he defeats himself. An embarrassed hush comes over the court. Everyone just wants to move on. But when our politicians go both ways - even in the very same paragraph - we are quick to forgive them. Journalists, afraid of losing access to those in power, pass over the inconsistency. They, like we, expect it, and hence they, like we, play into the expectations that we have.
But politicians too are part of this system we call "the rule of law." And if they are not embarrassed by inconsistency, then our law has no rule. If they can threaten to overturn an election because "the law has not been followed," but are not themselves constrained by the tiniest of limits that define the rule of law, then they become an embarrassment to our tradition, and a cancer on its life.
Ordinarily I think this fact about politicians doesn't matter much. They have their domain: politics. Except for Supreme Court confirmations, they stay far from pronouncements about what the law is. The harm they can do is limited; the space left open to reason, and consistency - to rule, in other words - is large.
The poison of these past weeks is a process that pretends to be acting under the rule of law, but with actors who are in no way constrained by the principle of rule of law. The vice is the gaggle of squawking politicians, making pronouncements about what the law requires, and what is or is not "illegal," while they themselves are (yet again) exempt from the very rules that impose integrity on the law - consistency, and a commitment to reason.
I was surprised when the Supreme Court entered this political fray. The arguments seemed beneath it. But if I can predict anything about this process, it is that this Court will surprise more than just me. If it is the Court that I knew, then its decision will demonstrate rule above politics, principle above party. If any institution in our system is able to distinguish between what they want and what is right; if any group of political actors is able to put aside their politics to follow what is true; if there is anyone in Washington constrained by integrity, then it is this Court.
This will surprise those we call our "leaders," as well as those who have little connection to the law. And perhaps that surprise will do some good. Gov. Bush may become president because his campaign effectively stopped the counting of votes in Florida. But he will not become president because a conservative court caved to his politics. If he understood the rhetoric he uttered, he would understand at least this.
Lawrence Lessig is a professor of law at Stanford Law School.
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