The U.S. Supreme Court has put an end to five weeks of uncertainty. In the early days of December, in the twilight between the certification of George W. Bush as the winner of Florida’s electoral votes and the decision of the U.S. Supreme Court that the Florida Supreme Court was wrong to intervene, only one thing was certain: No respectable constitutional-law scholar had a clue what was likely to happen. Most professed to be baffled that the U.S. Supreme Court would agree to involve itself in a controversy over Florida election law, and some argued that the Republicans (those alleged proponents of states’ rights) were rank hypocrites to run to the federal courts for protection from the Florida courts.

The Bush forces claimed that they were not defending the superiority of federal over state authority, but the rule of law over both. For the governor of Texas, the rule of law meant that federal and Florida guidelines promulgated before the election were the only ones that could be used in deciding the election. These guidelines included the deadline specified by statute for recounts and the discretion of the Florida secretary of state to disallow the results of hand recounts turned in after the deadline, absent fraud, machine failure, or acts of God—none of which anyone claimed occurred in the three counties the Democrats wanted recounted. Vice President Gore and die Florida Supreme Court (all of whose members were appointed by Democratic Florida governors) also claimed to be promoting the rule of law; but in their vision, the Florida constitution defers to the will of the people expressed in their individual votes. Holding up a ballot to the light to reveal a dimple or a minute separation in the binding of a chad was a bit like Harry Blackmum finding penumbras and emanations in the Bill of Rights which guaranteed the right to an abortion. For the Democrats, implementing the rule of law meant unleashing trial lawyers to manipulate legal rules.

The U.S. Supreme Court, then, had to choose between these two visions. For the first time in history, an audiotape of the arguments before the Court was released within minutes of the conclusion of the argument and broadcast to the nation. The passions of Democratic and Republican partisans were high, but the Court was an intriguing island of civility, with formal personal address and only mild jesting between the justices and the lawyers. The justices’ questions—not always a reliable indicator—made it clear that four of them (Rehnquist, Scalia, O’Connor, and Kennedy) believed that the Florida Supreme Court was about the business of making—rather than interpreting—law and had wrongly ignored the rules specified by the Florida legislature, the U.S. Constitution, and a federal statute. Four others (Stevens, Souter, Breyer, and Ginsburg) seemed to suggest that this was a matter for Floridians, not the federal courts. That these four—anything but champions of state sovereignty were prepared to uphold die Florida judges against the Florida legislature and the federal courts was an irony lost on no one. To the puzzlement of all and the consternation of many. Justice Breyer even suggested to a Gore lawyer that “we win” if “your side wins.” Justice Thomas said nothing—per usual—but his previous opinions castigating judicial overreaching led most to believe that he would be part of a five-to-four majority upholding Bush’s position that the Florida Supreme Court went too far.

The opinion of the pundits was that die Court took the ease to give a boost to Bush. Still, since the Florida secretary of state’s declaration that Bush was die winner (following the original vote, machine recount, and hand recounts in three heavily Democratic counties, one of which was aborted when it could not make the deadline) gave legitimacy to the governor’s quest for the presidency, the Court had the option of declaring the case moot and bowing out, hoping that the Florida recounts would not change the result. The Court was in a pickle: Its legitimacy depends on being able to claim it is apolitical, and a split decision favoring Bush could be painted as anything but. The Court speaks with greatest force when it is unanimous, but the only way to achieve unanimity would have been to dismiss Bush’s appeal as moot, which could have been spun by the Gore forces as a great triumph for their man, possibly defeating the purpose for which the Court agreed to hear the case in the first place. If the Court punted, it would be a blow to the rule of law; but if the Court did the right thing, upholding Bush’s challenge, would its future ability to preserve the law be imperiled?

The Court surprised everyone by unanimously vacating the state court’s decision and sending Hie case back to the Florida Supreme Court for clarification. Could the Florida Supreme Court really have meant that the Florida constitution’s comments regarding voter intent trumped a federal law mandating a firm deadline for the selection of electors? Wouldn’t that be changing the rules in mid-game, in violation of federal law? The U.S. Supreme Court was gently suggesting that Florida’s highest court back off. A Florida trial court, perhaps reading between the lines, held that the recounts the Gore camp wanted were impermissible under Florida law. Then, in the penultimate act, the Florida Supreme Court, blithely ignoring the request for clarification from the U.S. Supreme Court, reversed the Florida trial court in a four-to-three decision, ordered the recounts to continue, and created jubilation in the Gore camp. The chief justice of the Florida Supreme Court predicted that the U.S. Supreme Court would never permit the Florida decision to stand; the next day, the U.S. Supreme Court, by a vote of five to four, stayed the Florida Supreme Court’s order, stopping the recount. Two day’s later, there was another U.S. Supreme Court argument and another audiotape. On the third day, in another five-to-four ruling—although seven justices agreed that the manner in which the recount had been conducted was unconstitutional—the Court issued a final order, permanently stopping the recount. The opinion was a masterpiece of obfuscation; but when the smoke cleared. Vice President Gore understood that the majority had terminated his insurgency. On the fourth day, in the best speech he ever delivered. Gore conceded.

No one could have predicted it, but George W. Bush owes his presidency to five justices on the U.S. Supreme Court. This only happened, of course, because Vice President Gore—for the first time in memory—litigated a presidential election, and he who lives by the sword dies by the sword. We might also speculate whether it was wise to attack Justices Scalia and Thomas, as Al Gore did during his campaign. No matter. Those of us who still believe in the rule of law could rejoice that seven of the nine justices of the U.S. Supreme Court had the courage to say the right thing, and five had the courage to do it.