The Nine

by Jeffrey Toobin

  Meanwhile, a little-known trial judge in Tallahassee was disproving the Republican predictions of chaos and disorder in the recount. Just hours after the Florida Supreme Court had ruled, Judge Terry Lewis had called the parties together to work out the mechanics of how the 60,000 undervotes would be counted around the state. (Events were moving so fast that the only available court reporter could not make it into Lewis’s court, and so he monitored the hearing from home, listening to the broadcast on C-Span.)

  Judge Lewis was as competent a local judge as his colleague Judge Sauls was inept. In Lewis’s courtroom, Phil Beck, a renowned Chicago trial lawyer representing Bush, zeroed in on a weakness in the Florida Supreme Court opinion. That court had not laid out a single standard for the counties to use in determining whether a ballot should be included or not. Okay, Lewis asked, so what should the standard be? Beck said there couldn’t be a single standard, because that would be changing the rules in the middle of the game. The Bush position was a perfect circle. There must be a standard, but there was no way there could be a standard.

  Undeterred, Lewis came up with a plan. Shortly before midnight on Friday night, Lewis said that vote counting would commence in the Leon County public library on Saturday morning at eight. (Many of the ballots had already been transferred to Tallahassee.) All other counties were to send him a plan by noon. All counting was to be completed in a little more than a day, by two on Sunday afternoon, December 10. Lewis would remain in his office throughout the weekend to settle any disputes.

  By dawn on Saturday, something remarkable was occurring. Working through the night, both the Gore and Bush campaigns had assembled and sent teams to each of the state’s counties to monitor the vote counting. Across the state so many judges volunteered that Lewis was able to use them to replace all the county workers who had been planning to supervise the counting. At 9:51 a.m., the chief judge administered an oath to the vote counters in the Tallahassee library. At 10:07 a.m., the counting began. There were four tables, with two judges at each one. Before them were five boxes, each with a different marking: BUSH, GORE, OTHER, NO VOTE, CONTESTED. (Judge Lewis would review the ballots in the last box.) Similar scenes were taking place all over the state.

  From the beginning, the core of the Bush argument was that the Florida Supreme Court had created an anarchic mess in an effort to let the Democrats steal the election. But on Saturday morning, judges and county workers of all political persuasions were refuting that proposition. Quietly, efficiently—to be sure, imperfectly—they looked at the ballots and counted the votes. By noon that day, Terry Lewis’s deadline of the following afternoon looked like a reasonable target for completing the recount.

  As it happened, one of O’Connor’s clerks—one of the few who had good relations with both his conservative and his liberal colleagues—was throwing a party on Friday night at a bar in the Adams Morgan neighborhood of Washington. Many law clerks stopped in for a few drinks before returning to work to read Bush’s brief, which they knew would be coming.

  Back at the Court, alcohol made a contentious environment even more volatile. In the chambers of the conservatives, there was a raw, consuming anger at the Florida Supreme Court. The justices in Tallahassee had never responded to the questions that the justices in Washington had asked in their Palm Beach opinion of December 4. Bad enough that they were trying to steal the election for Gore, the clerks on the right were saying, but they were defying the U.S. Supreme Court as well. How dare they jump back into the election without first responding to their superiors on the high court?

  Up to this point, the Court had managed to hang on to a strained public unanimity. The only opinion in the case so far had been the brief per curiam in Palm Beach. But the veneer of bipartisanship disappeared on Friday night. Scalia was first to respond to the Bush brief, and his anger was searing. He thought the Florida court was contemptuous, defiant, and out of control; it had to be stopped. In a memo to the other justices, he said he didn’t just want to grant Bush’s request for a stay of the recount. Scalia wanted to issue a stay, grant certiorari on Bush’s appeal, and summarily reverse the Florida Supreme Court—all by Saturday morning and all without hearing any oral argument at all. The conservative chambers were coordinating overnight, and each one took a different part of the argument—Article II, statutory, equal protection.

  By late on Friday, there were five votes for a stay—Rehnquist, O’Connor, Scalia, Kennedy, and Thomas. For a while that evening, it even looked like the Court might adopt Scalia’s view and reverse the Florida decision without an argument, but Stevens, the senior justice in the minority, prevailed upon Rehnquist at least to schedule a conference on the issue for Saturday. Reluctantly, the chief agreed. At first, Rehnquist put the conference down for 1:00 p.m., but Scalia, who was itching to shut down the recount as soon as possible, convinced the chief to move it up to 10:00 a.m.

  In a brief, uncomfortable meeting on Saturday, December 9—as the vote counting was beginning in Florida—the justices gathered in the chief’s conference room. Scalia still wanted to reverse without argument, and so did Rehnquist and Thomas. O’Connor and Kennedy were willing to hear the parties in the case, but they maintained their vote in favor of a stay. The four others—Stevens, Souter, Ginsburg, and Breyer—dissented. Again, they made the point that had come up in the first case. Why not let the vote count proceed? Maybe Bush would win anyway. But the majority wouldn’t budge. Rehnquist drafted an order of just one page. Stay granted. Oral argument on Monday, December 11. Stevens said he would be filing a dissent.

  Back in his chambers, the elderly Chicagoan sat in front of the keyboard and tapped out three long paragraphs. Before deciding to make a unanimous Court in Palm Beach, Stevens had prepared a dissent in that case, so he was working off a partial draft. In typically rhythmic and elegant prose, Stevens wrote, “To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the Court throughout its history. On questions of state law, we have consistently respected the opinions of the highest courts of the States. On questions whose resolution is committed at least in large measure to another branch of the Federal Government, we have construed our own jurisdiction narrowly and exercised it cautiously. On federal constitutional questions that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion. The majority has acted unwisely.” The counting of legal votes, Stevens insisted, could never constitute an “irreparable harm”—which stays are supposed to prevent.

  Scalia had not planned to write anything and to let the stay speak for itself, but he was enraged by Stevens’s dissent, so he sat down at his desk to respond. (He was so angry that he delayed the issuance of the stay by taking the time to write, even though he was the one who thought speed was so essential.) His own three-paragraph concurring opinion proved the success of the Republicans’ legal strategy—which was far more political than legal. The Republicans had successfully portrayed the Florida court as partisan more than principled, but Scalia betrayed the same bias, albeit in favor of the other side. “The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election,” Scalia wrote. “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.”

  In normal circumstances—in all other circumstances—the Court would never have considered something so vague as the casting of clouds as amounting to a genuine legal harm, much less one that required the extraordinary step of issuing a stay. Moreover, in the complex tangle of litigation, the Eleventh Circuit Court of Appeals, in a preliminary ruling on the appeal of the federal decision by Judge Middlebrooks in Miami, had prohibited Harris from certifying anyone other than Bush as the winner of the state. So the only possible harm was that Florida might count its vot
es and Gore might pull ahead; as long as the Eleventh Circuit decision stood, Gore could not win the state. But for Scalia, that political problem for Bush—that the vote count might look embarrassing for a while—amounted to “irreparable harm.” Scalia was looking at the election entirely through Bush’s eyes; by his own words, the justice was clearly more concerned about producing a clean victory for the Republican than about determining the will of Florida’s voters. Notably, Scalia’s concurring opinion was so extreme that no other justice joined it.

  At 2:40 p.m. on Saturday, the public information staff of the Supreme Court summoned the reporters who were keeping vigil and distributed the Court’s order. The decision of the Florida Supreme Court was stayed. Cert was granted. Briefs were due the following day. Argument before the justices would take place in less than forty-eight hours, on Monday, December 11, at 11:00 a.m. Never in its history had the Supreme Court worked so fast.

  At his home at the Naval Observatory, Gore passed the news to his family and watched the coverage on television. At 3:11 p.m., he sent a BlackBerry message to his chief spokesmen, Mark Fabiani and Chris Lehane: “Please make sure that no one trashes the Supreme Court.”

  13

  PERFECTLY CLEAR

  By the morning of Sunday, December 10, when the briefs were due in Bush v. Gore, television cameras had already taken up positions on the sidewalk in front of the building. So much news had come out of the Court so fast that every news organization wanted to be ready. The press of media attention was so great that the Court’s police warned the justices to keep their curtains drawn because a high-powered lens might be able to read the words on a page.

  Inside the building, the clerks were all id—consumed by rage. Each side was thinking the same thing about the other: They’re trying to steal the election. Bad as relations had been earlier in the year—and earlier in the week—things were far worse now.

  As for Stephen Breyer, he was still all superego. Sure, things looked bad now, but logic—his logic—would prevail. He never gave up hope, not on this case or any other. True, a majority of the Court had granted a stay—which meant, under the legal standard, that it was “likely” that they would also rule for Bush on the merits of the case. But that didn’t settle the issue, at least not for Breyer. He had an almost messianic belief in the power of reason, and he never despaired about the ability of his colleagues to see the light—or his own ability to persuade them to see it.

  Besides, Breyer wasn’t so far from the conservatives on Bush v. Gore. As a former professor, Breyer could talk the language of legal doctrine and rhetoric as well as anyone, but he also had a bit of the pol in him, too. And Breyer the pol didn’t like what the Florida Supreme Court had done. To him, the justices in Tallahassee looked like they were trying too hard to help Gore. Worse, Breyer thought their failure to set a standard for the recount made their motives even more suspect. He didn’t particularly care if one described the problem as one of due process or equal protection or any other legal category. He thought what the Florida justices had done didn’t pass the smell test, and that was what mattered to him.

  But Breyer had a simple solution: remand the case back to the Florida Supreme Court, order those justices to set a clear standard for the whole state, and then recount the votes. Breyer loved compromise—and he thought this was a good one.

  So, on Sunday, Breyer sent his law clerks out on reconnaissance missions to identify potential converts from the majority. There were really only two candidates. Publicly and privately, Rehnquist, Scalia, and Thomas had made their positions clear. They were outraged by what the Florida justices had done, and they wanted to bring the election to a close. There was no chance they would change their minds.

  Breyer looked to O’Connor and Kennedy. With O’Connor, on this occasion, Breyer made the same mistake that so many others did about her jurisprudence. Just because she was usually in the middle didn’t mean that she had trouble making up her mind. And O’Connor had made up her mind about Bush v. Gore—firmly. She thought Bush should win, the case as well as the election. If there was anything O’Connor had learned growing up on a remote ranch, it was self-sufficiency; people had no right to blame anyone else, including the government, for their own mistakes. She had convinced herself that the root of the issue in Florida was simply that some voters hadn’t figured out how to cast their ballots the right way. In her view, it wasn’t the job of election officials—or the courts—to puzzle over the true meaning of ambiguously marked ballots. If the voters didn’t bother to learn how to vote correctly, the state shouldn’t try to figure out what these hapless souls meant to do. As for the Florida Supreme Court, those justices just looked like a bunch of Democratic hacks to O’Connor.

  Never mind that Florida law called for vote counters to determine the intent of the voters—or that state law also empowered the Florida courts to make that process work. (The Florida courts once ordered a county to count the ballots of voters who used a pen, rather than the required number 2 pencil, to mark their ballots.) Never mind, too, that many ballots were incomplete because of defective voting machines, not incompetent voters. O’Connor had simply run out of patience. In part, she was responding to her perception of the public mood. She thought that the American people were fed up with the whole controversy and, like her, wanted it over. (In fact, polls showed only a slight majority in favor of ending all recounts and considerable support for a complete recount in Florida.) In any case, Breyer’s power of persuasion failed. O’Connor was voting to reverse. Later, Souter made an unusual personal appeal for O’Connor’s support in the case. O’Connor, like Ginsburg, had a special fondness for the reclusive bachelor justice, but his advocacy didn’t work this time, either.

  On Sunday, a few liberal clerks thought O’Connor might have to leave the case. As David Margolick first reported, a Ginsburg clerk whose brother worked for the Wall Street Journal learned that the paper would be disclosing in Monday’s edition the remarks O’Connor had made at the election night party at the Stoessel home. Perhaps, the liberal clerks wondered, she would now recuse herself from the case, because she had indicated so clearly that she wanted Bush to win the election. But the clerks misjudged O’Connor—and the law. O’Connor’s comments at the party, while peculiar, hardly displayed a bias in this particular lawsuit, and anyway, there was no way that she was going to walk away from a case of this magnitude.

  Kennedy was a different story—perhaps. It had not been an easy term for him. A few weeks before the election, he had been assigned the opinion in Legal Services Corp. v. Velazquez, a case where he joined the four liberals—Stevens, Souter, Ginsburg, and Breyer—in striking down a law that barred legal services lawyers from challenging the constitutionality of welfare laws. (Congress had passed the law to halt what it regarded as liberal political activism by government-funded lawyers.) Kennedy had filled his first draft with such flowery language about the First Amendment and the importance of lawyers that he faced a rebellion from his colleagues. They wanted him to tone down his meaningless rhetoric. Kennedy did, reluctantly. Now, in Bush v. Gore, the same quartet of liberals needed Kennedy’s vote, this time for incalculably higher stakes.

  For the justices, Sunday, December 10, was mostly quiet. A few clerks came into the building to wait for the briefs, which were sent by messenger to the justices’ homes. The full Court didn’t gather again until Monday morning at eleven, when they would hear from the lawyers in the election cases for the final time.

  It had been just ten days since the first argument before the justices, but the courtroom seemed like an entirely different place on December 11. The cheerful buzz of December 1 had been replaced by a sullen hum. (Byron White did not return to watch the second argument. A few weeks later, he closed his office in Washington and moved back to Colorado. He died in 2002 at the age of eighty-four.) At the first argument, in the Palm Beach case, it had seemed possible that the Supreme Court would rise above the political sniping that had characterized the battle of Flor
ida. But halting the recount made the justices look like another set of partisans. For the Court, any pretense of impartiality, much less nobility, had vanished.

  Having won the stay, Ted Olson had now, in effect, to run out the clock. If he could stay out of trouble during oral argument, he would probably win the case (and the election) for his client. But Kennedy surprised him with the first question: “Can you begin by telling us our federal jurisdiction? Where’s the federal question here?” This was the point the Gore lawyers had been making all along—that the election was fundamentally a state matter, which should never have wound up before the U.S. Supreme Court. Olson replied evenly that the Florida Supreme Court had violated Article II of the Constitution, which said state legislatures, not state courts, must make the rules for presidential elections. But Kennedy came back with another of Gore’s arguments: “To say that the legislature of the state is unmoored from its own constitution and it can’t use its courts…has grave implications for our republican theory of government.”

  Was Kennedy switching sides? Not necessarily, because a few moments later, he jumped in with what he apparently regarded as a better argument for Bush, saying, “I thought your point was that the process is being conducted in violation of the Equal Protection Clause and it’s standardless.” That too, Olson agreed.

  Breyer took Kennedy’s question as an invitation to make a play for his vote. If the problem was that the Florida Supreme Court didn’t set a standard for counting the undervotes, why couldn’t they just set a standard now? Or have the Florida courts set one? Or Katherine Harris? Then the recount could begin again, right? Olson grudgingly conceded that a new standard might work. Souter made a similar point. Why not just set a new standard and restart the recount?