Court Provides Clues to Possible Rulings

W A S H I N G T O N, Dec. 11, 2000 -- How will the U.S. Supreme Court rule in Bush vs. Gore? The answer may lie in the justices’ questions.

The presidential election controversy has been anything but predictable, and trying to guess how the secretive Supreme Court will rule in any case is a perilous undertaking. “Questions can be a lot of things,” says ABCNEWS legal analyst Jack Ford. “Questions can be actually a statement from a justice … or it could be a genuine question.”

But as lawyers for George W. Bush and Al Gore made their cases for and against manual ballot recounts today, several of the nine justices offered a hint of the how the high court might rule.

If You Ain’t Got That Swing …

Judging from the questions thrown at Bush attorney Theodore Olson and Gore lawyer David Boies by the justices, ABCNEWS political analyst George Stephanopoulos says there is a strong possibility the court may issue a narrow ruling in favor of the Texas governor.

“It sounded like there was very little evidence that anybody was about to switch sides,” says Stephanopoulos, noting the court voted 5-4 on Saturday to halt the recounts ordered by the Florida high court from going forward. “Particularly Justice [Sandra Day] O’Connor — she was very critical of the Florida Supreme Court from the bench.”

O’Connor, who sided with her more conservative colleagues when she joined the majority in granting the emergency stay sought by the Bush campaign, is considered one of the court’s swing votes, along with Justice Anthony Kennedy.

Many legal experts said Gore’s best chance of winning the historic case was to persuade O’Connor or Kennedy to join with the four more liberal to moderate justices who dissented from the court’s decision to bar the recounts from going forward.

But ABCNEWS legal analyst Jeffrey Toobin says both justices appeared “troubled” by the question of whether the Florida Supreme Court usurped the role of the state Legislature when it ordered a new recount to commence.

“Isn’t there a big red flag out there [saying] ‘watch out’?” O’Connor pointedly asked Boies.

“That is of more than just ordinary importance, because those are swing votes that the Gore team needs to win,” Toobin says.

Many observers predicted the court would remain divided along the same lines as when it split over the stay.

“It’s almost certain that the final outcome will be exactly as it was over the weekend: five to four for George Bush,” says ABCNEWS political analyst Steve Roberts. “If the court’s majority were not absolutely determined to go ahead and render that result, they would not have done what they did.”

But Kennedy’s opening question to Olson also seemed to suggest he had not yet decided the U.S. Supreme Court had jurisdiction over the recount controversy.

“Where’s the federal question here?” he asked.

The Conservatives and LiberalsJustices William Rehnquist, Antonin Scalia and Clarence Thomas comprise the court’s conservative faction, while Justices Ruth Bader Ginsburg, David Souter, Stephen Breyer and John Paul Stevens make up the more moderate to liberal wing of the court.

ABCNEWS legal analyst Steven Gey says the persistent questioning about standards from both sides of the court’s ideological spectrum suggests the justices may be considering a “third option” in addition to the two clean-cut choices of simply affirming the Florida high court and allowing the recounts to proceed or over-ruling the court and striking down the recounts.

“A third option … is the possibility of reversing it to the Florida Supreme Court — remanding it yet one more time with instructions to define a statewide standard and go forward with the recounts under that statewide standard,” says Gey. “That opens up a whole new Pandora’s box.”

After the hearing, Boies told reporters: “I don’t think that you can read into the court’s questions what they’re going to decide.”

That was about the only thing Boies and Olson agreed on today.

“All I can say from the questions they asked is that they are very well-prepared,” said the Bush lawyer.

ABCNEWS.com’s Geraldine Sealey contributed to this report.