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At the U.S. Supreme Court with Roger Cossack

Roger Cossack

CNN Legal Analyst Roger Cossack was in the U.S. Supreme Court for Monday's oral arguments in Bush v. Gore.

CNN: The justices' questioning has been described as aggressive. Would you say that was accurate?

Cossack: Yes they were they, were very aggressive.

CNN: What were the issues they were focusing on?

Cossack: I would say that generally it broke down into two categories of questions: Did the Florida Supreme Court go too far in its interpretation of the laws so that it violated the Constitution, as well as federal statutes, or did it stick strictly to Florida laws which would not present a federal issue? That was brought about because the Constitution gave the state legislature the right and the plenary power, and plenary means all the power, to decide how the elections are to be done. And the question is did the judiciary in making its decision change the rules after the vote, and if they did, that would be something that violated perhaps the statutes as well as the Constitution.

Both sides obviously had differing opinions of what that was, with the Bush side saying that the court had gone too far and the Gore side saying no, this is strictly an interpretation of Florida law. However, there were penetrating questions on both and hypotheticals on both.

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To both sides, and particularly to the Gore side, was the notion of recounts without standards, in particular the idea as one justice put it, 'There are 67 counties that could be counted. What would happen if there were 67 standards under which these ballots should be counted, because the only thing the Florida legislature says is that you should follow the intent of the voter, and that could be different in each county?'

Wouldn't that, as Justice Souter said, be a violation of the Equal Protection Clause?

David Boies fought back bravely saying the intent of the voter was the intent of the voter and if local canvassing boards decide that the intent of the voter is what they're doing and it's not unreasonable as would be reviewed by a circuit court judge under the contest statute, then it would be ok. But the notion of no standards was a troubling one to the Supreme Court.

Justice Ginsberg pointed out that there were a number of different kinds of ballots, so by definition you would have a number of different standards, optical ballots, butterfly ballots and punch ballots that perhaps by definition would requires separate standards, so it would not be so shocking.

But I think those were the two issues that troubled the court, clearly the issue of no standards for the manual recounts, as well as the jurisdictional issue.

CNN: Experts have been focusing on Justices Sandra Day O'Connor and Anthony Kennedy, predicting that they could be the swing votes in the court's decision. How did they react to those issues?

Cossack: Kennedy was quite concerned about both of those issues, as well as O'Connor, about whether the Florida Supreme Court violated the Constitution. Kennedy, at least initially, seemed comfortable that the Florida legislature had implicitly given the court powers to review. Then, however, when David Boies argued, he took that issue up again, so it's hard to get a call.

Justice O'Connor I think, voiced more than any of them her displeasure with the fact that the Florida Supreme Court had never really responded to the first United States Supreme Court opinion in which they vacated the Florida Supreme Court's decision and asked for some information. I think she in some ways expressed some frustration about what she perceived to be a lack of information that the Florida Supreme Court gave.

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