Public perception of Supreme Court decision could be crucial

From CNN Correspondent Garrick Utley

WASHINGTON (CNN) -- What is it that makes this third branch of government, the one we never see in action, special?

Seven of the nine Supreme Court Justices were appointed by Republican presidents.

The U.S. Supreme Court justices are not elected, and can serve for life -- in theory, above politics. But how Bush v. Gore is settled may determine whether there will be true finality and closure.

"This will be a challenge to Chief Justice Rehnquist's stewardship. If the court has to decide this case the worst thing that could happen is that it would split 5-4 along the predictable liberal-conservative lines," said Samuel Issacharoff, a constitutional scholar at Columbia University.

But those who demonstrated outside the Supreme Court on Monday -- along with the rest of the nation watching on television and waiting -- are very familiar with the way that the court is often split along ideological lines.

Regardless of the outcome, most Americans appear ready to give the justices the benefit of any partisan doubts.

A CNN/USA Today/Gallup Poll conducted on the eve of the hearing revealed support for the Bush and Gore positions on recounting Florida's presidential ballots as nearly dead even. But 72 percent of the same respondents also said they felt that any ruling ending the dispute would be fair.

Frank Newport

"Despite their personal preferences which still splits even, the public is telling us let's get on with it. And if the Supreme Court says otherwise even if its against my own position, I'm willing to live with it," said Frank Newport, the Gallup Poll editor-in-chief.

Throughout its history, the Supreme Court has gone through periods which were considered activist and politically liberal. Today, it is generally seen as more conservative and less activist.

Seven of the nine justices were appointed by Republican presidents, which raises another unprecedented question. The court's ruling on whether the manual recounting of more than 40,000 of Florida's so-called undervotes will go forward could determine the nation's next president, who will likely nominate justices to the court during his term in office.

Samuel Issacharoff, a constitutional scholar at Columbia University

Such a scenario could give a new definition to the constitutional concept of "separation of powers." The justices themselves know what is at stake.

"They really have to preserve their institutional integrity," said Issacharoff. "If they are perceived as acting in a partisan fashion it will be a tremendous mark against the court for many, many years to come."

And perceptions could be crucial. On Jan. 20, 2001, the Chief Justice Rehnquist will administer the oath of office to the next president, because of a Supreme Court ruling.

So there are two opinions in this case: one from the Supreme Court and another from the public. Neither can be appealed.