Joseph Klock, a prominent Miami lawyer who was representing Harris, went next and gained a measure of immortality for his lack of grace under pressure. In answer to a question from Stevens, Klock called him “Justice Brennan.” (Brennan had been gone from the Court for ten years and dead for three.) A moment later, responding to Souter, Klock called him “Justice Breyer.” Frustrated, Souter sighed, to much laughter, and quipped, “I’m Justice Souter. You’d better cut that out.” Never one to let another justice steal the spotlight, the next voice from the bench said, “Mr. Klock? I’m Scalia!”
Gore had switched lawyers for the second argument, replacing Laurence Tribe, the Harvard law professor, with David Boies, the New York lawyer who had won both cases in the Florida Supreme Court. “I did not find, really, a response by the Florida Supreme Court to this court’s remand in the case a week ago,” O’Connor said to Boies. “And I found that troublesome.” As for the controversy over the standard, O’Connor didn’t understand the fuss: “Well, why isn’t the standard the one that voters are instructed to follow, for goodness’ sake? I mean, it couldn’t be clearer. I mean, why don’t we go to that standard?” In oral arguments, O’Connor’s chaste exclamations—my goodness!, oh dear!, and the like—were surefire clues to the way she was voting.
In oral argument, Boies didn’t have his best day. Souter repeated his concern about the lack of a standard in the Florida decision (and the possibility that different counties might adopt different rules), but he was also looking for a way to restart the count. He said to Boies, “We’ve got to make the assumption, I think, at this stage, that there may be such variation, and I think we would have a responsibility to tell the Florida courts what to do about it. On that assumption, what would you tell them to do about it?”
Boies hesitated. “Well, I think that’s a very hard question”—which produced nervous laughter in the audience. Actually, it wasn’t a hard question. The Supreme Court could simply set a standard or instruct the Florida court to set one.
There was a better answer, and Stevens jumped in and provided it. “Does not the procedure that is in place there contemplate that the uniformity will be achieved by having the final results all reviewed by the same judge?” Under the Florida decision, Judge Lewis in Tallahassee was going to monitor all controversies over the ballot counting. The review by a single judge would take care of any disparities. Boies had the wit to grab for Stevens’s lifeline, saying, “Yes, that’s what I was going to say, Your Honor.”
Olson had only a few minutes for his rebuttal, and he did what good oral advocates always do—he shifted his argument in the direction his audience was already going. He had started by focusing on Article II, but he sensed more interest than he expected in equal protection. Several justices—among them O’Connor, Kennedy, Souter, and Breyer—were concerned about the possibility of different standards in different counties. “There is no question, based upon this record, that there are different standards from county to county,” Olson said. “And that will happen in a situation where the process is ultimately subjective, completely up to the discretion of the official, and there’s no requirement of any uniformity. Now we have something that’s worse than that. We have standards that are different throughout 64 different counties. We’ve got only undercounts being considered where an indentation on a ballot will now be counted as a vote, but other ballots that may have indentations aren’t going to be counted at all.” With those remarks in their ears, the justices retreated to their conference.
It was not a normal conference. Because of the urgency, the justices had already exchanged several memos on the case, even before oral argument. So by the time they met with one another, it was clear that Rehnquist, Scalia, Thomas, and (almost certainly) O’Connor were committed to reversing the Florida Supreme Court. Stevens and Ginsburg would affirm, and Souter and Breyer were also looking for a way to keep the recount going. Kennedy had circulated a memo earlier that suggested strongly that he agreed with the conservatives, but at the conference he temporized, leading both sides to believe that they might get his vote.
After the conference, on Monday afternoon, Stevens made the first bid for Kennedy’s support. Realizing that Kennedy considered the absence of a single standard in the recounts to be a problem, Stevens drafted an order of just a few sentences remanding the case to the Florida Supreme Court for the setting of a statewide standard to continue the recount. He sent his messenger scurrying down the marble hallway to Kennedy and the rest of the justices. He heard nothing back, except from Ginsburg, who said she would join if it was a way of bringing the whole Court together. (The rush of events in Bush v. Gore strained the Court’s technology, which was, in 2000, still rather primitive. As a security precaution, the e-mail system circulated only within the building. Plus, there was only a single, communal computer from which the justices and clerks could obtain access to the Internet. Because only Thomas and Breyer used computers regularly at the time, there was little pressure from the justices to update. For the most part, the justices communicated with one another by hand-delivered memos, which were typed by their secretaries.)
As he often did, Rehnquist set out to write an opinion for the Court, even without a clear commitment that it would command a majority. He grounded it in Article II, rejecting the Florida court’s attempt to change the legislature’s plan for the election. But as the chief wrote, he knew he had only four votes for sure—his own, Scalia’s, Thomas’s, and (almost certainly) O’Connor’s.
It all came down to Kennedy, which was as he preferred. The magnitude of the occasion suited Kennedy’s taste for self-dramatization. By Monday afternoon, after Rehnquist had circulated his draft of an opinion, Kennedy decided that he would try to write one himself. He thought Rehnquist’s reliance on the obscure section of Article II did not comport with the magnitude of the issue at stake. Instead, Kennedy would strike down the Florida court’s ruling on equal protection grounds. In a peculiar way, Breyer’s advocacy for the middle road turned out to hurt his cause rather than help it. In Kennedy’s mind (and, later, O’Connor’s), Breyer and Souter’s misgivings about the Florida Supreme Court’s decision made opposition to it more respectable. O’Connor in particular did not relish the idea of joining with the three conservatives in such a politically charged case. By siding with Kennedy in a position that at least resembled Breyer and Souter’s view of the case, O’Connor could convince herself that she was safely in the middle of the Court.
Into Monday night, Kennedy and O’Connor and their clerks collaborated on a draft opinion, drawing largely from the memos they had written in the two election cases over the previous two weeks. (Scalia paid a rare visit to them both that day to encourage their joint effort.) They took the statement of facts from the draft that Rehnquist had circulated and then built their own equal protection argument. By early evening, Kennedy was happy with what he had produced. His vote was now secure. His clerks passed word to the Stevens chambers that Kennedy would not be joining his opinion. With that, Stevens decided he would keep his plane reservation for Florida the following morning, December 12. He could finish his dissent on the telephone with his clerks.
The Equal Protection Clause suited Kennedy’s romantic conception of the work of the Supreme Court. The provision was the source of some of the Court’s most dramatic and historic rulings, like Brownv. Board of Education in 1954 and Reynolds v. Sims in 1964, which established the rule of “one person, one vote” in legislative districting. Kennedy’s own best-known ruling involved equal protection; in 1996, he had written for a six-justice majority in Romer v. Evans that Colorado could not ban its cities from passing laws to protect homosexuals. Kennedy was no liberal, to be sure, but neither was he afraid to use the Constitution as an engine to guarantee equal treatment of all people.
So it wasn’t surprising that Kennedy embraced equal protection more than the opaque and technical Article II grounds of Rehnquist’s opinion. Taken in its most charitable light, Kennedy’s opinion in Bush
v. Gore could be said to extend the principle of “one person, one vote” from the question of how districts are apportioned before the election to the question of how votes are counted after the election. As Kennedy wrote, “The right to vote…is fundamental, and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” (Dignity is a favorite Kennedy word.) Counties had different rules about whether “dimpled chads” should be counted; individual counties sometimes changed the standard in the middle of a recount. “This is not a process with sufficient guarantees of equal treatment,” Kennedy wrote starchily.
The problem with Kennedy’s analysis, as innumerable commentators subsequently pointed out, was that no court, much less the Supreme Court, had ever before imposed any kind of constitutional rule of uniformity in the counting of ballots. Most states, including Florida, used different voting technologies in a single election. Kennedy was right that the recount might have produced inconsistencies and anomalies. But he was wrong on the larger, far more important point. A recount would have been more accurate than the certified total. The Court’s opinion preserved and endorsed a less fair, and less accurate, count of the votes.
O’Connor realized the problems with Kennedy’s equal protection analysis. Even at the oral argument, she raised some of them herself in her final questions for Olson, who had emphasized the difficulty of having “different standards from county to county.” O’Connor replied, “Well, there are different ballots from county to county, too, Mr. Olson, and that’s part of the argument that I don’t understand. There are machines; there’s the optical scanning. And then there are a whole variety of ballots; there’s the butterfly ballot that we’ve heard about and other kinds of punch card ballots. How can you have one standard when there are so many varieties of ballots?”
Still, in the end, O’Connor discounted her own apt summary of the issue. Notwithstanding her recognition of the problems with the equal protection argument, O’Connor decided to sign on. But she did so in characteristic fashion. Her position was really a version of Breyer’s—that the process just didn’t sound fair, and it needed to be stopped. To O’Connor, equal protection was a more moderate-sounding way of doing it than Rehnquist’s Article II approach. But unlike Kennedy, O’Connor had an aversion to grand pronouncements; she liked opinions narrowly tailored to the facts before the Court, and that was especially true of Bush v. Gore. She didn’t want to be making a lot of new law that might come back to haunt the Court in future cases. So late on Tuesday morning, December 12, as Kennedy’s opinion was starting to be put into final shape, O’Connor told Kennedy she wanted it clear that this opinion would not be creating a whole new set of rights and regulations for elections.
Kennedy responded by adding what became the most notorious sentence in the opinion—indeed, a single sentence that summed up so much of what was wrong with what the Court did. “Our consideration is limited to the present circumstances,” Kennedy wrote, “for the problem of equal protection in election processes generally presents many complexities.”
In other words, the opinion did not reflect any general legal principles; rather the Court was acting only to assist a single individual—George W. Bush. That was not what Kennedy meant, but that was what he wrote. The sentiment amounted to a natural consequence of the Court’s misbegotten encounter with the 2000 election. The business of the Supreme Court is to take cases that establish principles of general application. But as Kennedy’s sentence all but conceded, there was no general principle in Bush v. Gore—only a specific designation of the winner of one election. More than any other, this sentence invited skepticism about the majority’s true motives in the case.
By midafternoon on Tuesday, as the four justices in the minority circulated their dissenting opinions, tempers grew even shorter. Ginsburg had devoted her professional career to the use of the Equal Protection Clause of the Fourteenth Amendment, and it galled her to see that provision perverted by Kennedy’s opinion. In a late draft of her dissent, Ginsburg drew on certain early press reports about the black vote in Florida to suggest in a footnote that, if there was any equal protection violation by the state, it was more likely by state and local authorities than by the Florida Supreme Court. The footnote sent Scalia into a rage, and he replied with a memo—in a sealed envelope, to be opened only by Ginsburg herself—accusing her of “fouling our nest” and using “Al Sharpton tactics.” Ginsburg backed down and removed the footnote.
Still, the cumulative effects of the dissents worried Kennedy and O’Connor. They needed to show that their views were not as outlandish as the dissenters made them seem. So they decided to seize on the fact that Souter’s and Breyer’s opinions (which Stevens and Ginsburg joined in substantial part) said the case should be remanded to the Florida Supreme Court for the setting of a standard. Kennedy wrote, “Eight Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. The only disagreement is as to the remedy.” The statement was borderline disingenuous. In truth, the main point of Stevens’s, Souter’s, and Breyer’s opinions was that the recounts should continue, not that they had “problems.”
Stevens was already in Florida, but his clerks screamed at Kennedy’s clerk that the sentence distorted Stevens’s opinion. (In the confusion of the moment, they actually yelled at the wrong clerk, not the one who had responsibility for Bush v. Gore.) In response to the tirade from the Stevens chambers, Kennedy changed the reference to “Seven Justices.” Souter and Breyer would have been within their rights to protest as well, but they decided not to bother. That was a mistake. As a result of this sentence, as Kennedy intended, Bush v. Gore is often referred to by its supporters as a 7–2 case. In truth, it was never anything but 5–4.
The crisis of Bush v. Gore came upon the Court so quickly that the normal flow of business continued unabated, sometimes with comic results. At about nine in the evening on Tuesday, as the last of the opinions were being proofread before being sent to the printer in the basement, a court of appeals law clerk named Anil Kalhan showed up in advance of an interview with O’Connor that was scheduled for the next day. Kalhan thought he would visit friends who were already clerking. But his arrival outraged several other law clerks, who thought that an outsider like Kalhan could not be trusted to keep the result in Bush v. Gore secret. Some suggested, in apparent seriousness, that Kalhan be “detained,” so he could neither leave nor call outside the building. In any event, no one told Kalhan the result, and he drifted into one of the conference rooms where televisions had been set up to watch the media reports on the announcement. He was not detained, and neither did he get the clerkship.
Over the course of the day, the usual crew of about a dozen regulars in the Supreme Court pressroom had been joined by about fifty other reporters. At 9:40 p.m., Ed Turner, the Court’s deputy public information officer, entered the room and announced, “We’re going to make a line.” He read out the names of the permanent members of the Supreme Court press corps, and they dutifully queued up in the marble hallway. The newcomers stacked up behind them. At 9:52, the large cardboard boxes of opinions appeared, and the line moved at the nervous, half-running pace of paratroopers jumping out of a plane. Members of the public information staff had arranged for reporters to make a quick exit to the street through the door of the Supreme Court gift shop. The television reporters sprinted across the plaza to their camera positions on the First Street sidewalk.
Flipping madly through the pages, the correspondents struggled to make sense of the ruling. Because of the rush, the clerk’s office did not prepare a summary, which is customary at the beginning of all Supreme Court opinions. The journalists’ confusion was understandable, as the Court’s chaotic process was reflected in its finished product. Its opinion, largely written by Kennedy, was again labeled per curiam, “by the court,” which was the designation the justices usually used for uncontroversial rulings. Rehnquist ins
isted on its use here because the final opinion of the Court had been jointly assembled and the phrase would give a pretense of unanimity to the Court’s action. The end of the per curiam stated that the case was “remanded for further proceedings not inconsistent with this opinion.” That was a familiar phrase in the Court’s jurisprudence, but its meaning was, at first, unclear in the context of Bush v. Gore. Did it mean the recounts could continue? Foggy thinking by the Court had produced muddy writing, but closer parsing eventually showed that the answer was no.
Inside the Court, televisions had been set up in a pair of nearby conference rooms for the law clerks. The liberals migrated to one gathering, the conservatives to the other. Not surprisingly, the two rooms split close to evenly, like the rest of the country on this night. The liberals had Thai food and beer; the conservatives pizza and Scotch. They were unanimous only in their hooting derision for the television reporters. None of the justices came to watch; instead they made their way to their cars and drove home.
It had been at least twenty-five years since the nation turned its collective attention to the Supreme Court to resolve a question of such importance. In 1974, the justices had risen to the occasion when, in United States v. Nixon, they unanimously ordered the president to turn over the White House tapes and, in a larger sense, comply with the rule of law. Here, in a moment of probably even greater significance, the Court as an institution and the justices as individuals failed. Indeed, their performance on this case amounted to a catalog of their worst flaws as judges.
In one respect, though, the Court received unfair criticism for Bush v. Gore—from those who said the justices in the majority “stole the election” for Bush. Rather, what the Court did was remove any uncertainty about the outcome. It is possible that if the Court had ruled fairly—or, better yet, not taken the case at all—Gore would have won the election. A recount might have led to a Gore victory in Florida. It is also entirely possible that, had the Court acted properly and left the resolution of the election to the Florida courts, Bush would have won anyway. The recount of the 60,000 undervotes might have resulted in Bush’s preserving or expanding his lead. The Florida legislature, which was controlled by Republicans, might have stepped in and awarded the state’s electoral votes to Bush. And if the dispute had wound up in the House of Representatives, which has the constitutional duty to resolve controversies involving the Electoral College, Bush might have won there, too. The tragedy of the Court’s performance in the election of 2000 was not that it led to Bush’s victory but the inept and unsavory manner with which the justices exercised their power.
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