The Nine

by Jeffrey Toobin

  More important, though, as Kennedy dictated the Court’s order, which was largely his own work, the five justices in favor of cert had agreed on a schedule that was even faster than the one the Republicans had proposed. This alone was virtually without precedent. The justices rarely agreed to accelerate their schedule at all, but they never proposed a timetable that was even quicker than what the parties sought. Olson had asked for oral argument on December 5; Kennedy gave it to him on December 1.

  Kennedy was miffed that the lawyer from the clerk’s office had not come prepared for their meeting. “E-mail it back to me before you send it out, so I can check it,” he said stiffly. The justices—five of them, anyway—wanted this case.

  By the time of oral argument in Bush v. Palm Beach County Canvassing Board, it was clear that the Court should not have taken the case in the first place. The relevant legal issue concerned Gore’s “protest” of the election results—his demands for recounts in three remaining counties before Harris certified the election results as final. During the week that the Supreme Court case was pending, only one county of the three actually completed its recount, and in Broward, Gore netted 567 additional votes. In Miami-Dade, Bush supporters staged what became known as the “Brooks Brothers riot,” and the canvassing board shut down its recount. In Palm Beach, the canvassing board tried to finish counting its votes but missed Harris’s deadline. In any event, on Sunday night, November 26, in a solemn, nationally televised ceremony, Harris did certify the election, with Bush the winner by 537 votes. The Gore forces promptly filed a “contest,” which was the next legal procedure, after the precertification “protest,” to dispute the result of an election.

  So on the morning of Friday, December 1, the justices appeared from behind their massive red curtain to hear an argument about an election “protest” that was, by the standards of this election, ancient history. Simply put, the issue before the justices didn’t matter anymore. Still, the mood in the courtroom was chipper, almost giddy. The process in Florida had been so bizarre and unpredictable that there was a sense—a hope—that the Court might put it all right.

  In the chair closest to the bench, the seat of honor for spectators, was the stooped figure of Byron White. The former football star looked wizened and unwell, but he, like everyone else who had the chance, didn’t want to miss this (apparently) once-in-a-lifetime event.

  The argument, however, quickly bogged down into a discussion of minutia. As revealed by their questions to Ted Olson, O’Connor and Kennedy seemed to be having a case of buyer’s remorse, regretting that they had ever granted certiorari. As O’Connor put it, “If it were purely a matter of state law, I suppose we normally would leave it alone, where the state supreme court found it, and so you probably have to persuade us there’s some issue of federal law here.”

  Kennedy said, “We’re looking for a federal issue.” The questions for Gore’s lawyer, Harvard Law School professor Laurence Tribe, were also vigorous, but mostly the justices seemed to be looking for a graceful exit.

  The justices’ conference took place on the same Friday afternoon as the argument. The justices did not take a formal vote, as they customarily did, but instead resolved to try to come up with some unanimous decision. They knew that in such a politically polarizing moment, the Court would send a comforting signal by uniting around a single result. Anyway, the stakes were fairly low. Because the protest was already over, there wasn’t a great deal that the Court could do. The conservatives, especially Scalia, were outraged that the Florida Supreme Court seemed to be rewriting the state election code. He wanted to slap that court down, at least rhetorically. O’Connor, too, didn’t like the way the Florida justices appeared to be freelancing—and helping Gore. The more liberal justices, especially Stevens, thought that Florida was merely doing what state courts always did—interpreting state law. Since the “contest” of the election was already under way, Stevens and his allies thought they should just dismiss the appeal and let the process in Florida run its course.

  When the conference reached an ambiguous result, Rehnquist often drafted his own opinion and then tried to bring everyone around. Even with a case of this magnitude, the phlegmatic chief didn’t actually write this one himself but instead assigned a law clerk, Luke Sobota, to compose the first draft.

  Rehnquist resolved to “vacate”—that is, overturn the decision of the Florida Supreme Court—but declined to set out any new rules of law in the decision. “After reviewing the opinion of the Florida Supreme Court, we find that there is considerable uncertainty as to the precise grounds for the decision,” the opinion stated. “This is sufficient reason for us to decline at this time to review the federal questions asserted to be present.” In other words, the chief was inviting the Florida court to explain itself better but not exactly ruling that it was wrong. This was a shot across the bow of the Florida justices, a warning against further activism in this case, but one with relatively little practical significance at this late date.

  The Supreme Court’s brief opinion was released on Monday, December 4. It was delivered not by a specific justice but rather per curiam, “by the court,” a designation that the Court generally used for minor and uncontroversial opinions. If this had been the Court’s only decision in the 2000 presidential contest, the justices’ role would be remembered as a modest footnote in the story. As the justices themselves recognized, they never should have involved themselves in the election, but having done so, at least they did no significant harm.

  The more important news of December 4 took place in Tallahassee, where a local judge ruled in the Gore team’s “contest.” He rejected any further recounts and upheld Harris’s certification of Bush’s victory. That decision now headed to the Florida Supreme Court—and, ultimately, back to the United States Supreme Court.

  12

  OVER THE BRINK

  No case engaged the justices’ law clerks more than the election cases in 2000. Many of them spent the crucial period in December in a frenzy of outrage about the tactics and merits of one party or the other in the controversy. The question, though, is whether the clerks made any real difference in the outcome.

  The first person to promote the image of scheming and powerful law clerks was William Rehnquist himself. Forty-three years earlier, shortly after his own clerkship for Justice Robert H. Jackson, Rehnquist wrote an article for U.S. News & World Report asserting that “liberal” law clerks were “slanting” the work of the Court to the left. Rehnquist said that a majority of clerks showed “extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of state power, [and] great sympathy toward any government regulation of business.” For many years, Rehnquist’s picture of the Court as a redoubt of liberal clerks remained the dominant image.

  Then in 1998, Edward Lazarus, a former clerk for Harry Blackmun, turned that image around. He saw many clerks operating in support of a conservative agenda. In his book Closed Chambers, Lazarus argued that these right-wing clerks “self-consciously styled the Cabal,” wielded “very significant power…for partisan ends.” Reared in Federalist Society cells in law schools, they collaborated for ideological ends in the Court’s cafeteria and the cheap Chinese restaurants of Capitol Hill.

  The truth about Supreme Court law clerks seems more mundane. Generally in their late twenties, they are top graduates of leading law schools who have first spent a year working as clerks for lower court judges. (The judges who regularly place their clerks on the high court are known as “feeders.”) The clerks review cert petitions, helping to winnow the eight thousand or so cases to the eighty or so accepted for review. They discuss the cases with their justices to prepare for oral argument, and, most notably, they write first drafts of opinions. The details of the procedure vary by justice. Thomas appoints a head clerk; O’Connor required clerks to prepare a “bench memo” summarizing the arguments in each case; Kennedy has a classroom-style prep session with his clerks before most ora
l arguments; and Scalia ignores his clerks for long periods of time. Stevens alone employs a totally different system. He is the only justice who does not participate in the “cert pool,” which has one law clerk from the other eight chambers prepare a detailed memo on each cert petition. Stevens also writes his own first drafts. And Stevens, as Rehnquist did, hires only three clerks each year, while the others take four.

  The fact that law clerks draft most opinions has given rise to several misimpressions, particularly on the part of the clerks themselves. Because they have this responsibility, many clerks think they are more important than they are. Supreme Court opinions are stylized documents—statements of facts followed by legal analyses—in a format that changes little from case to case. In general, only a small part of each opinion has any lasting significance, and the justices themselves monitor that section with care. Once Rehnquist became a justice, he developed a very different conception of the power of the law clerks. With appealing candor, Rehnquist used to say that he felt bound less by the footnotes than by the texts of prior opinions because the clerks usually wrote the footnotes. Most important, the justices themselves—alone—decide how to vote, and the votes matter more than anything else.

  Still, the clerks give the institution a jolt of new energy each year and, in a way, set the tone in the building. O’Connor liked Arizonans, Rehnquist tennis players; Ginsburg favors musicians, Souter quirky intellectuals. Year by year, however, the chemistry varies. In 1999–2000, the term before the election, everyone got along pretty well, though there was one notorious incident when a clerk pushed another into one of the Court’s fountains. During the following year—which included the recount controversy—the atmosphere was sour from day one. More than in most years, the justices on the left—especially Stevens, Ginsburg, and Breyer—had very liberal clerks, and across the ideological divide the clerks were similarly fevered in their views. By the time the Court decided the first election case, the mood inside the building was poisonous. Still, once the decision in Bush v. Palm Beach County Canvassing Board was rendered, it seemed like the Court had seen the last of the election of 2000; the justices’ bland opinion appeared certain to be their final word on the subject.

  But the fight in Florida continued. Gore’s “contest” of the certified election results had gone before Judge N. Sanders Sauls in Tallahassee. Sauls was known as one of the worst judges in the county—petty, vindictive, and reactionary; in 1998, the Florida Supreme Court had even threatened to demote him because of “the continuing disruption in the administration of justice” on his watch. The assignment of Sauls turned out to be a perverse kind of good luck for Gore.

  His conduct of the trial, entitled Albert Gore, Jr. v. Katherine Harris, lived up to his reputation. Sauls’s opinion, which was rendered in the late afternoon of Monday, December 4, was brief and shoddy. He admitted that “the record shows voter error, and/or less than total accuracy” in the Florida voting machines but found no “reasonable probability that the statewide election result would be different” if the votes had been correctly counted. By nightfall, the Gore lawyers had appealed the case back to the Florida Supreme Court, which had once more become Gore’s only hope.

  Again, Florida law appeared to be on Gore’s side. It was clear that there were major errors in the counting of ballots in Florida; it was clear, too, that a hand recount of the ballots would be more accurate. But Judge Sauls had simply assumed that a recount would make no difference.

  The lawyers returned to the Florida Supreme Court on the morning of Thursday, December 7. The Bush forces were projecting an air of inevitability about the result. Baker and other top aides did not even show up for the argument, their absence sending the message that the legal proceedings no longer mattered. But at least some of the justices thought that Sauls had blundered badly—and that the votes still needed to be counted. The key issue from the beginning had involved the undervotes.

  At first, one of Bush’s strongest arguments had been that checking the undervotes in only four counties—and not the other sixty-three—was inherently unfair. Now, because the election had been certified with Bush in the lead, that argument suddenly helped Gore, who was only asking the court to restart the recounts in Palm Beach and Miami-Dade. But the questions from the justices raised an even more tantalizing prospect—recounting all the undervotes in the entire state. Surely, as the questions from the justices implied, that would be the fairest way to see if any legitimate ballots had been ignored. There were about 60,000 undervotes in the remaining counties. Why not simply look at them all?

  The Democrats could scarcely bring themselves to hope for so sweeping a victory, but at 3:50 p.m. on Friday, December 8, the court spokesman delivered the judgment of the court on the steps of the courthouse in Tallahassee. First, the court agreed that Sauls had erred in certifying the results in two counties—therefore cutting Bush’s margin in Florida from 537 to 154 (or 193). It would be up to Sauls, on remand, to determine whether 154 or 193 was correct. But the more astonishing announcement was to come. “By a vote of four to three, the majority of the court has reversed the decision of the trial court,” the spokesman, Craig Waters, said. “The circuit court shall order a manual recount of all undervotes in any Florida county where such a recount has not yet occurred. Because time is of the essence, the recount shall commence immediately.”

  The Florida Supreme Court had resurrected Gore from the political dead.

  The entire Gore legal team operated out of a three-lawyer suite in one of Tallahassee’s lesser office buildings. (It was actually a branch of a medium-sized Fort Lauderdale law firm; several larger firms in the state declined to take Gore’s case, apparently out of fear of offending the Republican power structure in Florida.) Initially, this threadbare operation had no cable-television hookup, no high-speed Internet connection, and no room for the dozen or so lawyers who eventually made their way to town to work for Gore.

  The Republicans, in contrast, hired the Tallahassee office of the second-biggest law firm in the state and then rented a sprawling office of their own as well. (Later, they procured still another space in a location that they kept secret from the press, so they could prepare for the contest without being interrupted.) And that was just in the Florida capital. The Bush team was even better situated in Washington, where the center of activity moved as soon as the Florida Supreme Court ordered the expanded recount.

  Bush’s Supreme Court team, working out of Ted Olson’s offices at the firm of Gibson, Dunn & Crutcher, had, under Baker’s orders, made preparations for all eventualities. So by Friday afternoon, December 8, it already had the rudiments of a brief asking the Supreme Court to step in and stop the recount ordered by the Florida court. The principal drafting was done by two of Olson’s younger partners, Miguel Estrada and Doug Cox, along with Mike Carvin, the Washington lawyer (from another firm) who had argued for Bush in the first case before the Florida Supreme Court. Uppermost in their minds was an observation that their colleague John Roberts had made earlier—that the Court would want this case. And like all other advocates before the Rehnquist Court, the Bush lawyers knew the key vote and their most important audience—Sandra O’Connor.

  As always for O’Connor, the practical consequences would matter more than the legal theory, so that’s where Olson and company focused their brief. “Few issues could be more important than those presented in this case. At stake is the lawful resolution of a national election for the office of President of the United States,” they wrote. The Supreme Court had to intervene, and the justices couldn’t just grant cert; rather, they had to issue a stay and stop the recount in Florida before matters went further out of control. “This Court’s review is essential in this case in order to protect the integrity of the electoral process for President and Vice President of the United States and in order to correct the serious constitutional errors made by the Florida Supreme Court,” Olson’s team wrote. “A stay is necessary in order to prevent irreparable harm to [Bush], to the elec
toral process, and to the Nation as a consequence of the flawed decision below.”

  The legal basis for Bush’s position was incidental and rather weak. The principal argument concerned the obscure provision of Article II of the Constitution that provides that each state shall choose electors “in such manner as the legislature thereof may direct.” The Republicans said that it was now the Florida court—and not the legislature—that was “directing” how Florida chose the winner of the state’s electoral votes. The sole authority for this claim was a nearly incomprehensible opinion of the Court from 1892. (The Florida court had disposed of this Article II argument by saying that it was simply doing what courts always do—interpreting Florida election law, not making it.) Almost as a throwaway, the Bush team added another claim—that the recounts violated the Equal Protection Clause of the Fourteenth Amendment. Their casual attention to this argument—just three pages in a forty-two-page brief—was understandable. The Supreme Court, in granting cert in the Palm Beach case, had thought the equal protection argument was so weak that it refused even to hear argument on the issue.

  Fundamentally, though, the Republicans’ appeal to the Court, and especially to O’Connor, was more political than legal. The gist was that a court with a clear Democratic agenda was throwing the election into chaos by making up rules. The Florida Supreme Court’s decision had been styled Gore v. Harris. But the lawyers in Olson’s office changed the caption to the one that would be known to history: Bush v. Gore. The brief arrived at the clerk’s office of the Supreme Court about five hours after the Florida court’s ruling—that is, at 9:18 p.m. on Friday, December 8.