Authors: Jeffrey Toobin
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 The cheerful buzz of December 1 had been replaced by a sullen hum.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 Florida. 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?
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.