WASHINGTON—In a wide-ranging inquiry into the legal side of the presidential election dispute, the Supreme Court took turns yesterday denouncing and defending a Florida court ruling that prolonged the feud.
After a 90-minute hearing, before an audience peopled with Washington's political and legal elite, the court gave no hint of when - or even whether - it would decide Texas Gov. George W. Bush's appeal.
Al Gore is seeking to gather enough late-counted votes to win.
Signs of a deep division among the justices emerged, perhaps complicating the task of finding a consensus.
As the hearing unfolded, the Florida Supreme Court's Nov. 21 ruling - a decision that permitted manual recounts past a state deadline for determining a winner of that state's 25 electoral votes - became the focus of the justices' attention.
Conservative justices, ordinarily defenders of states' rights, leveled direct and indirect blows at the state court. And liberal justices, usually more inclined to favor national power, rose to the state tribunal's defense.
At one point, Justice Anthony M. Kennedy, a leader of the bloc of justices who favor state sovereignty, accused the state court of having changed Florida presidential election procedures and replaced them with "an amorphous, general, abstract standard."
That standard was not nearly specific enough, Kennedy went on, to allow Floridians to know what law governed their elections.
Justice Ruth Bader Ginsburg, one of the court's more liberal members and seldom a defender of state sovereignty, told Bush's lawyer, Theodore B. Olson: "I do not know of any case where we have impugned a state supreme court the way you are doing in this case. In case after case, we have said we owe the highest respect to what the state supreme court says is the state's law."
Olson countered that because, in the Bush case, a federal election - for president - was at stake, the state court was not entitled to the same deference from the justices.
Gore's lawyer at the hearing, Professor Laurence H. Tribe of Harvard Law School, also came to the state court's defense. He argued that the state court had done nothing more than clear up confusing and contradictory parts of Florida state law - something the Supreme Court normally would not second-guess.
Though some justices questioned, early in the hearing, whether the dispute even belonged in the U.S. Supreme Court at this stage, the impression emerged later that the state Supreme Court ruling might be in jeopardy.
As that impression formed, Justice Ginsburg was joined by others - mainly Justices Stephen G. Breyer and David H. Souter - in suggesting ways that the court might want to avoid deciding the case now.
Ginsburg suggested that the Supreme Court might want to send the case back to the Florida tribunal to let it explain itself further. Breyer said the case might not remain a live dispute because Bush at the moment was not at risk of losing his lead. And Souter pondered the possibility of leaving the whole matter for Congress to resolve when it counts electoral votes Jan. 5.
Because none of those suggestions, however, drew the support of other justices, it was not clear whether they would become a factor as the full court pondered what to do about the Florida case.
One of the surprising developments was that several justices showed a keen interest in the legal implications if the Florida Legislature stepped in to pick a slate of presidential electors on its own, to blunt the Gore challenge now proceeding in state courts.
The court does not appear to have to resolve the legality of that kind of intervention when it deals with Bush's appeal. But that did not deter the justices' interest.
Justice Sandra Day O'Connor, for example, suggested that she believed the Legislature would have authority under the Constitution to name electors itself. The Legislature's Republican leaders are likely to call a special session next week to do exactly that, choosing a slate that would vote for Bush in the Electoral College balloting 16 days from now.
The court hearing was called for the justices to explore two legal questions: Did Florida's highest court violate an 1887 federal law on presidential elections by changing the legal rules after Election Day? And did the state court violate the Constitution by intruding on the domain of the Legislature to devise the means of choosing presidential electors?