The disputed election of 2000 seems a lifetime ago—before 9/11 and the age of terror, before Barack Obama and gridlock, before Donald Trump and chaos. Unless you wanted to engage in the game of imagining what the country might look like had Al Gore become the 43rd president, did it really matter anymore how the election was resolved?
For the Supreme Court, in Bush v. Gore, it surely did. No other ruling of the current era, including Roe v. Wade, so undercut the Court’s legitimacy. It’s true enough that George W. Bush took office peacefully. There were no riots in the streets. Many citizens, along with their representatives, sneered, but they obeyed, just as they ultimately had after Brown and Roe. In 1832, President Andrew Jackson did ignore a Court decision concerning the Cherokee Nation—“Well, John Marshall has made his decision, now let him enforce it,” Jackson may have said—but such outright insubordination was the exception. The Court’s dominion over American life had become so reflexively ingrained in the public mind that the justices’ intervention in Bush v. Gore—even if wrong in the first instance—was assumed: Who else was going to take care of the mess?
The question was a sign not so much of strength in constitutional architecture as of collective disengagement with how government was supposed to work. Few hollered at the Court in the sustained way that followed Roe. That was because the dispute, unlike the one about abortion, was over something incapable of replication. After all, an election involving 6 million votes that essentially ended in a tie was a statistical accident. But Bush v. Gore nonetheless produced an insidious result. It confirmed the cynical assumption of many—elsewhere in government, as well as among the public generally—that the justices sometimes were no more than undeclared partisans.
And no other decision seemed to shatter the fiction within the Court itself that its members performed their duties independently of politics, operating above the petty machinations of the other branches. Even if one charitably concluded the justices exercised no conscious partisan choice between Republican and Democrat, the fact was that in Bush v. Gore the justices demonstrated total contempt for Congress. Both the Constitution itself—the Twelfth Amendment—and a federal statute called the Electoral Count Act identified Congress as the final arbiter of a disputed presidential election. Each provision had been adopted following a deadlock: the Twelfth Amendment after Thomas Jefferson and Aaron Burr in 1800 were tied in the Electoral College for nearly three months, and the Electoral Count Act after three states had chosen competing slates of electors in the 1876 election between Samuel Tilden and Rutherford B. Hayes. In drafting the Electoral Count Act, Congress had specifically decided that the Court should play no part in a dispute. Yet in Bush v. Gore the Court leaped in, and a submissive Congress allowed itself to be rolled.
The justices didn’t talk about the ignominy of Bush v. Gore among themselves. It was not a topic they lingered over in commencement addresses or in their memoirs. But ask them, and a few—on both sides—will tell you that no other ruling haunts them more. Not because it resulted in Bush becoming president—that probably would have happened anyway had the Court stayed out of the battle—but because of the institutional scar it left. Among law clerks each year, Bush v. Gore was the one recent high-profile ruling that virtually all agreed had stained the institution.
The official tally in the decisive state of Florida was 2,912,790 votes for Bush to 2,912,253 votes for Gore—a difference of 537, or less than a one-hundredth of 1 percent. But Bush really won by a single vote, cast by Anthony Kennedy, in a 5-to-4 ruling by the Court. Sandra Day O’Connor and the three hard-line conservatives—William Rehnquist, Antonin Scalia and Clarence Thomas—sided with Bush as well. But in essence it was one justice who got to pick the president.
Election Night 2000—Tuesday, November 7—was a dramatist’s dream and everyone else’s nightmare. Polls had indicated a close contest nationally and that Florida could be the tipping state. Just before 7 p.m. Eastern, all the major TV networks within a 12-minute span announced Gore as the winner of Florida’s 25 electoral votes. He was on his way to the total of 270 he needed in the Electoral College. “If we say somebody’s carried a state,” explained anchor Dan Rather about CBS’s state-of-the-art predictions apparatus, “you can pretty much take that to the bank!” Three hours later, all the networks issued retractions. Apparently, the organization conducting exit polls for the networks had imperfectly modeled the number of expected absentee ballots. Software gremlins were also at play; in one county, Gore’s electronic vote total at one point stood at negative 16,000.
Shortly after 2 a.m., the networks declared Bush was the winner in Florida and thereby the president-elect. Here was Rather again: “Sip it, savor it, cup it, photostat it, underline it in red, press it in a book, put it in an album, hang it on the wall!” Only Peter Jennings at ABC hedged, saying Bush would be president “unless there is a terrible calamity.” Jennings didn’t have to wait long. The networks had relied on a 50,000-vote margin for Bush that existed at the moment they made the call. But numbers continued to come in, and the 50,000 shrank to 18,000 to 6,000 to 1,000 to 200—it was like watching a Tom Clancy thriller in which the timer on a bomb ticks ever closer to zero. Gore, who had initially called Bush to concede right after the network announcements, called him back to retract. That led to a testy exchange between the two candidates that culminated in Gore’s “You don’t have to be snippy about it!”
With actual returns, rather than projections, showing a virtual dead heat, the networks had little choice but to withdraw their declaration. Completing a surreal night, they moved Florida from the REPUBLICAN column to UNDECIDED. The big jigsaw piece in the lower-right corner of their electronic TV maps turned back to white, surrounded by the blues and reds of states long resolved. The Electoral College was now at 266 votes for Gore and 246 votes for Bush. “We don’t have egg on our face,” cringed Tom Brokaw on NBC. “We have an omelet.” The networks had blown the electoral call twice. Print media made their own mistakes. The New York Times ran off more than 100,000 copies of an edition announcing, BUSH APPEARS TO DEFEAT GORE, before literally stopping the presses and redoing the front page.
Thus began the great Bush-Gore recount that went on for 37 days. The Democrats wanted only to keep recounts going. The Republicans did all they could to run the clock out. Each side claimed the higher moral ground, but if Gore had led or if Bush had trailed, each would have adopted the opposite position. Realpolitik didn’t constitute hypocrisy. Invoking principle, even though you would abandon it tomorrow, did.
The action in the state shifted among 67 counties, from local canvassing boards and various courthouses to the state legislature and the governor’s mansion. But lurking over all of it like a vulture was the U.S. Supreme Court, which got involved to some extent more than half of the 37 days of the recount. Twice the Court agreed to hear appeals by Bush after he lost in the Florida Supreme Court. Chief Justice William Rehnquist seemed to know it would turn out that way. He loved to run betting pools, for the NCAA basketball tournament, for the Super Bowl, for which case would be decided last each term—it didn’t matter. But after Election Day 2000, he sent out a memo to Court employees cautioning them not to bet on a presidential victor.
Once lawsuits began flying, it was Kennedy who followed them with the most anticipation. He even provided his colleagues with written updates, as if they weren’t already following developments. As he typically was the first member of the Court to arrive each morning—sometimes by 6—the others would find his updates waiting. Kennedy’s interest stemmed in part from his duty to oversee emergency petitions from federal courts in the Southeast. But he also was just hoping. No justice was more eager to second-guess other governmental actors—and here Kennedy might score a hat trick: the Florida Supreme Court, the Florida legislature and Congress. This, he believed, was an impending constitutional crisis—a Chicken Little fear further propagated by hyperventilated TV coverage.
There was no such crisis. A crisis, for example, would be if the commander in chief refused to transfer the reins of power after being defeated. The Constitution and federal law set up procedures for resolving a contested presidential election. And none of the procedures involved the Supreme Court. This was the system properly, if lumberingly, at work.
As the Florida dispute slogged on, in New York City Jane Ginsburg was at a luncheon at Columbia University’s law school, where she taught. A couple of reporters at her table were discussing the election. One asked the other, “Can you imagine being a justice these days and wondering if this storm is headed your way?” Professor Ginsburg overheard them. She smiled, then interjected, “Yes, actually,” she said. “I can.” Her mother was Justice Ruth Bader Ginsburg.
Each side had its gripes. Democrats objected to the actions, and inaction, of Katherine Harris, Florida’s secretary of state and a political ally of the governor, Jeb Bush, who was the brother of George W. Harris’s chief interest was in swiftly certifying an election result that had George W. in the lead. Republicans didn’t like how Gore was cherry-picking the counties in which to seek recounts.
Litigation began on parallel paths—one in state court, one in federal. The first suit was actually filed by the Republicans, despite their claims later that it was Gore the crybaby who rushed to court. Republicans had vented for decades about how disgruntled Democrats always headed there when they couldn’t get what they wanted through the political process. That was the complaint of Robert Bork, Antonin Scalia, Ronald Reagan and a cavalcade of intellectuals who made a living reprimanding the judicial excesses of the 1960s and ’70s. Roe was their smoking gun for Democrats’ disrespect for democracy.
But now that Democrats were pursuing the political process—through recount procedures established by Florida law—Republicans wanted the game moved to a different playing field. While talking about “states’ rights” (or “federalism,” which had no overtones of the Old South) and demonizing federal courts were great fodder for conservatives on the Federalist Society lecture circuit, the Bush campaign contended those topics had no place in this particular battle in this particular state.
Six days after the election, Bush’s lawyers appeared in the federal courtroom of Judge Donald Middlebrooks in Miami to preempt possible action by state judges who Bush thought would be predisposed to Democrats. Middlebrooks had been appointed by President Clinton, but was widely respected in Florida political circles. Bush’s position was simple: He wanted to stop all manual recounts on the grounds they were “unreliable,” “subjective” and “inevitably biased,” and therefore unconstitutional. Papers in the case had been filed 48 hours earlier, but Middlebrooks had already thought it through. Right after the hearing, he issued a 24-page ruling against Bush.
Though the arguments before him were “serious,” Middlebrooks wrote, this was a “garden-variety election dispute.” The threshold question, he said, was who should consider them. And he decided it wasn’t him. Under the Constitution, “responsibility for selection of [presidential] electors…rests primarily with the people of Florida, its elections officials and, if necessary, its courts.” But what of Gore’s decision to pursue recounts only in counties likely to harvest net votes in his favor? Wasn’t selective recounting itself a violation of “equal protection of the laws”—especially if different counties applied different standards in evaluating improperly punched paper ballots (like those with “dimples” or “hanging chads”)?
No, said the judge. “The state election scheme,” he wrote, was “reasonable” and “appeared to be neutral.” That made it ordinarily immune from federal intervention (in contrast to, say, practices aimed at depriving racial minorities of the right to vote). The procedures strived “to strengthen rather than dilute the right to vote by securing, as near as humanly possible, an accurate and true reflection of the will of the electorate.” And Article II of the Constitution itself delineated the authoritative role of states, rather than the federal judiciary, in determining how presidential electors were chosen. An electoral system run by localities was wise, according to Middlebrooks. “Rather than a sign of weakness or constitutional injury, some solace can be taken in the fact that no one centralized body or person can control the tabulation” of an entire election. “The more county boards and individuals involved in the electoral regulation process,” the judge wrote, “the less likely it becomes that corruption, bias or error can influence the ultimate result.”
Middlebrooks had crafted the most scrupulous legal opinion of those 37 days. Little noticed at the time or since, it was a ringing exposition of judicial modesty, of staying in the wings when the crowd demanded a command appearance. His ruling was subsequently upheld by a federal appeals court, and the Supreme Court never addressed it. Middlebrooks understood the virtue of not deciding cases. “Federal judges,” he wrote, “are not the bosses in state election disputes.”
A week later, the Gore legal team filed suit in state court to stop Harris from certifying the election returns until manual recounts had been completed in the four counties that Gore had selected. Democrat-backed litigation on recounts followed elsewhere in the state. The Florida Supreme Court quickly stepped in to block Harris and unanimously ordered her to include the results of recounts in her tally. Bush appealed to the U.S. Supreme Court. One of his lawyers, George Terwilliger, well described why. “The first thing they teach in law school is, ‘Give me the court, and I’ll give you the ruling.’ ” Terwilliger called the Florida Supreme Court “result-oriented, philosophically liberal and politically Democratic.” He could have added that Gore’s legal team considered the U.S. Supreme Court result-oriented, philosophically conservative and politically Republican.
Few scholars expected the justices to go anywhere near a state election dispute, even if it involved the presidency. Norms of judicial humility had changed, but the experts agreed it would be institutional hubris to grant cert. Ginsburg told clerks the Court wouldn’t touch the election “with a 10-foot pole”—right before the Court took the case. One of Bush’s lawyers, a top appellate practitioner in Washington who had previously served in two Republican administrations, thought otherwise. He flew down to Florida’s capital, Tallahassee, to offer advice. His name was John Roberts, and he turned out to be right. To the horror of Justices Ginsburg, Stevens, Souter and Breyer—who became the dissenters in Bush v. Gore—the Court on November 24 accepted this initial appeal out of Florida, called Bush v. Palm Beach County Canvassing Board. It was the first in a cascade of blunders by the justices.
Court arguments normally are scheduled months in advance, giving parties a chance to brief the issues fully and offering justices the opportunity to size up the issues. However, for this case, argument was set for only a week hence—an expedited calendar used only in extraordinary situations like the Pentagon Papers Case in 1971 or the Nixon Tapes Case in 1974. An unresolved presidential election necessitated haste, but with haste came the amplified possibility of sloppy analysis.
Bush wanted the Court to hear his claim about equal protection—that varying recounting standards violated the Fourteenth Amendment because voters were denied an equal voice. But the justices declined. Not only was it premature because Middlebrooks’s ruling was still pending before an appeals court, but such a question would also open a Pandora’s box. There were 3,141 counties in the United States. Most contained multiple municipalities, each of which might have separate voting precincts. All used different machines, ballot designs, instructions and personnel. Lines could be short in some neighborhoods, around the block in others. Polls were open for 12 hours in some places, 15 in the next. Many of the disparities disproportionately affected African Americans. Such impact had always been a benchmark of equal protection jurisprudence. African Americans tended to live in poorer areas, which had less reliable voting equipment. In a close election, variations related to race might far exceed whatever nonracial differences might be revealed in a recount. Did the Court really want to get into whether any such variances could amount to constitutional transgressions—and to do so on a ridiculously short clock?
Not for the moment, the justices decided. Instead, they agreed to consider only the more obscure issues raised in Bush’s appeal. First, was federal law violated when the Florida Supreme Court extended the state’s deadline for certifying a winner? Similarly, was a state court barred from clarifying what marks on a ballot represented an actual vote? The federal law in question was the Electoral Count Act of 1887, which served to block states from changing the rules of a presidential election after Election Day. Congress enacted the law to avoid a rerun of the stalemate of 1876 between Tilden, the Democrat, and Hayes, the Republican. If a state satisfied the Electoral Count Act—its “safe harbor” provisions—then Congress had to accept its slate of electors when it officially counted electoral votes in January. The safe harbor provisions also included a deadline for having all electors in place; for the 2000 election, the deadline was December 12. The other issue the justices agreed to consider was jurisdictional: Had the Florida Supreme Court violated Article II of the Constitution, which gives state legislatures exclusive power to specify how electors were chosen? Did that mean state courts could have no part in the process?
That was the legal minutiae. What the justices really wanted to know was whether the Florida Supreme Court was trying to steal the election—by reaching a pro-Gore result and then contorting the law to accomplish it. In fact, the Florida court was acting reasonably. It was simply trying to ensure that every legally cast vote got counted, just as state law envisioned—and not so different from what other states required. In Bush’s Texas, for example, state law “preferred” manual recounts to electronic counts. As long as a ballot showed evidence of “any clearly ascertainable intent of the voter,” the ballot would be accepted. Bush, as governor, had signed the law. While Texas didn’t control Florida elections, and it might be that both states had unconstitutional statutes, the existence of Texas’s law, and others like it, undermined Bush’s argument.
The safe harbor provisions were also easy to dispense with. The Florida Election Code, created of course by the legislature, was a mishmash. Provisions conflicted with each other. What actually was “the law” on Election Day, and to what extent was a subsequent interpretation by a state court a forbidden “change”? A court’s decision to harmonize contradictory election provisions might be only the everyday exercise of statutory construction that courts did for a living.
Moreover, the safe harbor itself wasn’t a requirement at all—not of the U.S. Constitution or of the Florida constitution or of Congress itself. The Florida Election Code made no mention of it. All the safe harbor did was grant a benefit to a state that sailed in under certain conditions. But a state might still decide that it preferred to count all its votes rather than enjoy immunity from congressional scrutiny of its electors. And the Florida Supreme Court was reasonable to conclude it had a role to play in resolving ambiguous state election law. Even if Article II of the Constitution dictates that “state legislatures” control the “manner” of selecting electors, the “manner” includes the passage of prior legislation—whose final interpretation is the province of the judiciary.
While the Florida Supreme Court’s opinion ordering further recounts wasn’t a model of clarity, it should have been good enough for the justices in Washington to let it pass. That was especially so if one concludes the U.S. Supreme Court had no business in the case to begin with. Article II said “each state” was in charge of its own presidential electors. Even if a state court got it wrong, wasn’t that preferable to federal intervention over this most sacrosanct of state prerogatives, as Article II itself recognized?
On December 4, a mere three days after they heard oral argument, the justices stepped away from the precipice. Kennedy wanted most to keep his hand in the game. “We must be very careful to preserve the role of the Court,” he had warned during argument. Stevens, especially, thought the Court should have no role other than to return the matter to Florida and allow state processes to run their course. Scalia and Thomas wanted all litigation terminated and Bush in effect declared the winner. Instead, the Court unanimously settled for something in the middle. That meant punting the case back to Tallahassee and asking the Florida Supreme Court for a rewrite that better accounted for federal law and the Constitution. It was the appellate equivalent of a shot across the bow—or as a clerk put it, “across the distinctly port side of a lower court.”
The justices said nothing about why they were opining at all, considering that the Constitution made Congress the ultimate master of the Electoral College. If there was a dispute about electors, should not Congress sort it out if the Florida authorities didn’t? There also wasn’t a single mention of equal protection in the Court’s unsigned opinion, though that issue lay in wait. Some of the conservative justices did anticipate that, if need be, equal protection would be the constitutional sword they used to dispatch Gore. But at that point, none of the justices much wanted to see the mess wind up back before them. The Court had avoided equal protection mostly because the justices recognized it would be divisive. The last thing they needed was a 5-to-4 fracture over the presidency.
The other telling thing about the case was how little effort Gore’s lawyers themselves put in urging the Court to exercise institutional self-control. Where were references to such beacons of restraint as Felix Frankfurter and John Marshall Harlan II, Learned Hand and Alexander Bickel? It was as if it never occurred to Gore’s side—which, after all, staunchly supported interventions like Roe v. Wade—that restraint was a credible argument anymore. Just ask Gore’s chief lawyer in the case, Harvard Law School’s Larry Tribe. “Judicial restraint,” he wrote years earlier in the preface to his consummate treatise on constitutional law, “is but another form of judicial activism.” In that view, for Bush or for Gore, the Court would reign supreme. Such was the disrepute into which judicial minimalism had fallen.
There’s an old joke among state judges: Saint Peter is running things at the Pearly Gates when three doctors arrive and ask to be let in. “Who are you?” Saint Peter asks the first.
“I was a neurosurgeon,” he replies.
“Too many here already,” Saint Peter says, and dismisses him.
The second man identifies himself as a cardiologist, and he, too, is rejected.
When the third starts walking off before even being questioned, Saint Peter asks, “What about you?”
“Psychiatrist—you don’t need me here.”
“Actually, we do,” Saint Peter answers. “We need someone to talk to God—he thinks he’s a Supreme Court justice.”
One member of the Florida Supreme Court told the joke privately when the case was bounced back from Washington. But the judges didn’t take the hint. In Tallahassee, a different phase of the litigation was underway: Gore’s challenge of Harris’s certification of the election. A local judge decided against Gore. So, three days after the ruling in Washington, the dispute was right back at the Florida Supreme Court. Under immense time pressure, they had to think on the fly. Should they widen the scope of recounts, and if so, should they announce counting standards? Both might ward off equal protection problems, but the latter might generate safe harbor issues. Unlike in the first appeal, the Florida Supreme Court was deeply divided.
The next afternoon, by a 4-to-3 vote, the court ordered an expanded recount. Now, all “undervotes” had to be evaluated statewide—and it had to be done within a few days if the state was going to heed the safe harbor provision. Undervotes were ballots that a voting machine read as having cast no vote. That might have happened because voters really cast no vote (“none of the above,” in effect), or because they didn’t fully punch out the hole on a ballot or fill in the little circle with enough pencil. Determining voter intent fell to mere humans and required each ballot to be examined by hand. There were 40,000 to 60,000 undervotes, depending on definitions.
Democrats were elated. “This decision is not just a victory for Al Gore,” proclaimed Bill Daley, chairman of the campaign. “It is a victory for fairness and accountability in our democracy itself.” Yet despite “democracy itself,” Daley added, “all of these matters should be resolved by the Florida judiciary—not by the politicians.” From the son of the boss of political bosses, former mayor Richard Daley of Chicago, it was crowning proof of how judicialized our politics had become. Would James Madison ever have imagined that a presidential election would come down to a duel between two supreme courts?
The Florida ruling contained a grab bag of defects. Rather than only direct each county’s canvassing board to divine the “clear indication of the intent of the voter,” wouldn’t it have been better to spell out uniform criteria for doing so? It was true that the Florida Election Code already stated that “intent of the voter” was the standard. But the language begged the question. And why not also recount the roughly 100,000 “overvotes”—ballots that a machine indicated had cast multiple votes? What if someone wrote on a ballot, “Oops, I voted for Smith and Jones, but I prefer Jones”? There couldn’t be any doubt there. And frankly, to be consistent, why not manually inspect all 6 million ballots in the state, impractical as that might be?
None of those weaknesses made the ruling indefensible. It simply was flawed, which wasn’t surprising. There couldn’t be a perfect ruling when the subject matter involved imperfect technology, imperfect voters and imperfect human evaluations of voter intent—decentralized in 67 counties. But degree of difficulty hardly dictated that judges and legislators shouldn’t seek the fairest count. Insisting, as the Bush team did throughout, that machine counts were better than manual recounts didn’t even add up to an argument.
The question was who got to render the final decision. If the Florida Supreme Court had hoped to keep the justices in Washington at bay, the omissions in its ruling did the opposite. Even though this case technically was separate from the earlier appeal, the Florida judges had unwisely failed to address the justices’ instruction to explain themselves better. Some of the Florida judges privately explained later they weren’t flouting Washington. They were just swamped. But to some of the justices, the Florida Supreme Court was looking more and more like a renegade.
Back in Washington, several justices watched the Florida judicial proceeding on TV, which was ironic, given what they thought of cameras in their own courtroom. The justices had just begun a holiday recess, but they were back in business that Friday night. Within a few hours of the Florida ruling ordering a statewide recount that would begin Saturday morning, Bush’s lawyers churned out a petition to the justices. It asked not only that the Court again step in, but also that it halt the recount immediately. The emergency request got filed with the Court’s “death clerk,” who normally handled last-minute pleas from death row inmates for stays of execution. That same evening, Stevens saw Breyer at a Christmas party. “I guess we’ll have to meet tomorrow—it’ll take us about 10 minutes,” Stevens said. He assumed there wasn’t a chance the Court would block the recount. Some of Gore’s top aides told the candidate the same thing.
In Tallahassee that Friday, both houses of the Republican-controlled state legislature prepared to hold a special session the following week that would award Florida’s electors to Bush. The ruling by the Florida Supreme Court made such a move more likely. For if Gore pulled ahead in the recount, the same court might direct Harris to certify him the winner, then order the governor to sign the formal documents for the Electoral College. If both state officials refused, the court itself might execute the documents. The governor had previously said that “no judicial power exists” to compel him to send along a Gore electoral slate. It was the only time in the dispute that any official threatened to defy a court, which was another reflection of the judiciary’s primacy. Officials routinely did end runs of legislative and executive commands, but the courts were off limits. That was why judges were wise to conserve their power by leaving political disputes to the two political branches.
If the legislature did ignore the Florida Supreme Court and went ahead with a Bush slate, that could mean two slates of electors going to the Electoral College and a resulting deadlock—just as in 1876—which would require Congress to sort out a winner in January, presumably in time for Inauguration Day.
The pathology among Florida’s three branches of government—and the chance it would metastasize to Congress—unnerved all the participants. But their fears were misplaced. A resolution might have taken time, and the process surely would have looked chaotic. But no blood would have been shed, no states would have seceded. The process would have been no more and no less than what we signed up for in a democracy. Whatever decision Congress reached on our behalf, it was answerable. If we disagreed with the resolution, we could vote its members out of office soon enough. We can’t do that to Supreme Court justices.
Any emergency stay would be drastic and extraordinary. Litigants had to convince the U.S. Supreme Court that they would likely win once an appeal was fully presented. But that alone was insufficient, because the justices often knew how a case was probably going to come out when they decided to take it in the first place (even though under Court rules it takes only four votes, not five, to grant cert). So litigants also had to show they would suffer “irreparable harm” if a stay were not granted.
The first requirement turned out to be easy for Bush. The Court had heard Bush v. Palm Beach County Canvassing Board a week earlier. Back then, the discussion among the justices in the conference left little doubt there was a 5-to-4 majority in reserve in Bush’s favor. It was the second requirement that rightly worried Bush’s lawyers. How could they argue that including legal votes would irreparably injure Bush? It might be politically mortifying, but that wasn’t the Court’s problem, all the more when a stay would stop the recount and make the clock even shorter. A stay was meant only to maintain the status quo. But if you let the condemned inmate go to the chair, there was no way to undo it. Was the possibility of a small lead for Bush becoming a small lead for Gore the equivalent?
Bush’s petition to the Court warned that “the entire electoral process under our federal/state dual scheme was now threatened” because “whatever tabulations” ensued would be “incurable in the public consciousness, and once announced, cannot be retracted.” That was utter nonsense. The Constitution and federal law allowed for the very possibility that a state’s electoral votes wouldn’t be counted. But the Court bought it, in the most intemperate decision of the election saga. On Saturday afternoon, December 9—only seven hours after the recount began—the justices issued the stay, blocking further counting. If the looming safe harbor deadline was an actual requirement, the stay effectively made Bush the president-elect. Oral argument, for what it might be worth, was set for Monday morning.
The vote was 5–4. The deceptive unanimity of the Court’s prior ruling was gone. The four liberals laid bare the breach. Stevens—joined by Breyer, Ginsburg and Souter—took the rare step of writing a dissent to the stay. It was exceptional enough for the Court to declare ahead of time where it stood on an appeal, but publishing a dissent this early on evidenced a depth of indignation seldom heard at the institution.
This was the moment during the dispute when the Court’s credibility—challenged during such lows as Dred Scott in 1857, Plessy in 1896, and the Korematsu ruling in 1944 that upheld the internment of Japanese Americans during World War II—dissolved again, in our own times. That loss of credibility was more consequential than a single presidential election. The four dissenting justices were disconsolate. “To stop the legal counting of votes,” Stevens wrote, the majority departed from “venerable rules of judicial restraint.” On questions of state law, he said, “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.” Blocking the recount, Stevens concluded, “will inevitably cast a cloud on the legitimacy of the election.”
It was a bit rich to hear liberals bellyaching about restraint—just as it was to see the conservatives trampling the independence of states—but Stevens was correct. If there was irreparable harm to be done, it was that the stay would amount to a verdict for Bush before the appeal was heard.
This was more than Scalia could bear. If dissents to a stay were unusual, concurrences to a stay were unheard of. A stay order was typically an unsigned sentence or two. Writing to explain a stay smacked of gloating. But what Scalia possessed in wit he lacked in discretion. Stevens knew it and got Scalia to reveal his emotions. None of the other justices in the majority joined Scalia, and on a less frantic schedule, they might’ve tried talking him down. Taking the bait, he wrote: “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.”
Both sides, then, at least agreed that any ruling by the Court would “cast a cloud” on electoral legitimacy. It just depended on whose parade the rain would fall on. In Scalia’s view, “the public” couldn’t handle more. It was the Court’s job to put the political process out of its misery. Bush’s “election” wasn’t even a question. Indeed, Scalia had wanted the recount stopped the night before the Court granted the stay. He tried to convince his colleagues to reverse the Florida ruling immediately—without giving Gore the chance to respond. It was an unprecedented, brazen display of partisanship on the part of a justice.
The majority of five granted the stay more out of fear for the five than concern for the country. Had the justices not done so, the recount would have continued and Gore might’ve pulled ahead. If the Court then had to invalidate the counts, the lead would revert to Bush. That could make the justices look even worse than they did by blocking the recount before it got rolling. The Court routinely reversed the status quo, most dramatically when it reinstated death sentences that had been thrown out by lower courts; typically, in those situations, the inmates were then executed. The only difference was that heinous killers, unlike a presidential candidate, had no constituency to offend.
The stay stunned Gore, but he remained a prisoner of the Court’s mystique. Minutes after the stay, using his BlackBerry pseudonym “Robert Stone,” he sent an email to senior campaign staff, entreating them to “Please make sure that no one trashes the Supreme Court.” He also wasn’t stupid. He believed that Kennedy or perhaps O’Connor might still be flipped during oral argument, turning a 5-to-4 loss into a 5-to-4 win. There was no purpose in taunting the bear.
But Alice in Wonderland had arrived: Decision first, legal reasoning afterward. O’Connor was already disgusted—with both what she viewed as a mutinous Florida Supreme Court and the incompetence of Florida voters. Manual recounts were folly, she thought. And if voters couldn’t follow instructions—“for goodness’ sake!” as she later put it during the argument—she saw no reason to save them. There was another explanation for her attitude: She wanted Bush to win. It wasn’t just that she was a loyal Republican—earlier in her career, she had been the GOP majority leader of the Arizona Senate. Several publications, for example, reported that on Election Night she had told friends that Gore’s apparent victory “was terrible.” There was also the greater problem of succession. If Gore were in the White House, and if she wanted the next justice to be named by a Republican, she’d have to wait at least four years before retiring. And she did want off the Court, to care for her ailing husband John.
Siding with Bush for reasons of succession was bad enough. But it was worse if one believed what her husband revealed a few months after Bush v. Gore was decided. At a large charity dinner, he told another guest that Sandra had voted as she did—even though “she knew it was wrong”—in the hope that she would be able to retire sooner. That was inconsistent with what she had said at the Court—that she had real objections to what was happening in Florida. But it would have been inconceivable for her to acknowledge to colleagues or clerks—or to herself—that she consciously chose Bush over Gore despite knowing it was wrong to do so. (The dinner guest, who has bipartisan connections, was willing to disclose the conversation only years later because time had passed, John had died in 2009, and O’Connor had retired.)
To the extent her husband’s health had affected her judgment, the cruel result was that O’Connor was forced to stay for four more years anyway. Due to the opprobrium Bush v. Gore received—which long baffled her—she didn’t retire until 2005, a year after Bush won reelection. In the interim, John’s health had deteriorated further.
Under other circumstances, O’Connor might have been the ideal member of the Court to weigh the case. At the time, she was the only justice who had held elective office. Prior eras included former senators, governors, attorneys general and others outside the cocoon of judicial life. Of the 31 justices appointed between 1922 and 1971, fewer than half had prior judicial experience; of the nine justices appointed by FDR, only three had been judges. But the Court that decided Bush v. Gore was dominated by judicial veterans. That meant most of the justices had little firsthand appreciation of how politics worked, of why politics had value in a democracy. (The post-O’Connor Court is the first ever to lack even a single member who had served in elective office. Rather than seeing that insularity as a deficiency, Chief Justice Roberts has lauded it, believing it somehow makes for justices who stick to “legal arguments” rather than making “policy” choices.)
Considering O’Connor’s position—and given that Rehnquist, Thomas and Scalia weren’t open to persuasion—the only justice in question after the stay was Kennedy. In characteristic fashion, from that Saturday to the final ruling three days later, he sent different signals to colleagues and clerks. Breyer especially worked him. After the fact, Souter privately acknowledged he had thought Kennedy was winnable. Meeting with students at Choate a month later, Souter said that if there had been more time, he hoped to bring Kennedy into a coalition in the same way Kennedy joined him, along with O’Connor, back in 1992 in the Casey joint opinion that had upheld Roe v. Wade.
If he’d had “one more day—one more day,” Souter told one of the Choate participants, he believed he might have prevailed.
Kennedy, though, stuck with the majority and never seriously considered abandoning it. Responding to Souter’s musings, Kennedy later said if he had had one more day, “I might have persuaded him.”
The internal Court enmity over Bush v. Gore called to mind the line from half a century earlier about “nine scorpions.” Apart from the pay, the job of being a justice was certainly the best in the legal profession. It offered power, job security, a short docket, a regal office, rank at a nice restaurant but anonymity at Whole Foods, summers away from Potomac swelter, and never having to deal with clients. Yet the Court could be a cage. Although the justices get along personally, they have to deal with each other, in close proximity, for years. A case with the stakes of Bush v. Gore tested their kinship.
After ordering the stay, the Court agreed to consider three questions during oral argument. Both issues from the earlier appeal were still open: the safe harbor statutory provision (with its deadline of December 12) and the constitutional clause about the role of state legislatures. But this time, equal protection—which the justices sidestepped in Round 1—was on the table. The Court may fairly put off issues when the facts justify it. But in this instance the Court had left itself open to accusations it had rigged the game. If the justices avoided equal protection a week before, only to take it up in the bottom of the ninth inning—when Electoral College deadlines might leave no more time for recounts to be conducted in a way that satisfied equal protection—the justices were guilty of either awful planning or diabolical cunning.
Once again, the issue that the justices didn’t bother to ask was whether they ought to be involved at all. And even more glaring, Congress, across the street, remained silent. The Florida legislature, for example, had filed an amicus curiae brief that urged the justices to do nothing to circumscribe its prerogatives. Such “friend of the court” briefs were common. So, where was Congress, which had the role both under the Constitution and under federal statute to resolve presidential elections? After the Hayes-Tilden fiasco of 1876, Congress had set up an entire process to handle exactly the situation posed by Bush and Gore in 2000. But in a test of its own supremacy, in which it had the most to lose in terms of institutional power, a cowed Congress was a no-show. Given so many years of unchallenged pronouncements about judicial supremacy, that was hardly a revelation.
Some members of Congress actually announced they were relieved the Court took on the dispute. This abdication of responsibility, of course, was less about faith in the justices than about the legislators’ dread they might have to act—and be held accountable by voters. Republicans knew that if the Court ruled against Bush, they still controlled the House of Representatives, which under the Constitution had the final word over the presidency. So, to them—apart from defending the very idea of separation of powers—there was nothing to lose from the Court diving into the pool. Democrats recognized that even if Gore won at the Court, he would lose in the House, so what was the point of trying to wrest the dispute from the Court, where he might win and get some leverage? Several justices observed this bipartisan reluctance and concluded it gave them more justification to intervene. But Congress wanting out of its obligations was itself the best evidence it was the correct institution to confront the storm. Congress was accountable.
At 11 a.m. sharp on Monday, December 11, the justices left their robing room in the chief justice’s chambers and slowly proceeded across the hallway to their entrance in the back of the courtroom. It was only about 10 steps. But on this historic day, a few law clerks made sure to gather to witness the walk—or what some clerks have referred to as the “duckling crossing.” Ted Olson, the well-known Washington litigator, opened the argument for Bush. He wanted the justices to focus on the presumed impudence of the Florida Supreme Court, but to the justices, the constitutional and statutory questions about changing the Florida election rules seemed minor. The justices wanted to hear about equal protection.
Tactically minded, Breyer was the justice to drill it home. Knowing the conservatives were likely to invoke equal protection to justify ending the recount for good, he now offered a compromise that might pull Kennedy away. Breyer told Olson he was willing to concede an equal protection violation because of “different standards in different places,” and then asked, “What in your opinion would be a fair standard?” If that could be resolved, Breyer wanted to resume the recount, ignore the December 12 deadline, and give Florida until December 18, the date the Electoral College met.
Given the questions to Olson, Gore’s lawyer—David Boies, the New York trial specialist—assumed, correctly, that equal protection was the ballgame. Kennedy got him to acknowledge there had to be a “uniform standard.” But, Boies insisted, that standard was simply “whether or not the intent of the voter is reflected by the ballot.” Though such intent was a subjective determination, he was correct. Kennedy saw it as a dodge. “That’s very general,” he told Boies. “Even a dog knows the difference in being stumbled over and being kicked….From the standpoint of the Equal Protection Clause, could each county give their own interpretation to what intent means?” Yes, Boies replied.
Kennedy couldn’t believe it. “This is susceptible of a uniform standard,” he said, “and yet you say it can vary from [recount] table to table within the same county?”
Boies had dug himself a hole. If he proposed uniform rules about, say, hanging chads, he’d be tacking close to the shoals of the Electoral Count Act and out of the December 12 safe harbor he had admitted was significant. Boies wanted it both ways and ended up satisfying nobody. There really was no way out of the conundrum, other than to say Florida already had an established rule: to determine the intent of a voter. Existing law had no equal protection issue with different voting technologies. So, even though Florida counties might wind up evaluating the same kind of paper ballot differently, that hardly seemed a constitutional problem.
There was one other, more technical issue that Boies failed to raise. Rehnquist wanted to know how a recount could be completed by the December 12 deadline, which the stay had made impossible. Boies should have mentioned “tolling,” which was a commonplace judicial remedy. It “stops the clock” when unusual circumstances, beyond the control of the parties, dictate that a time constraint can’t be met. Here, if December 12—tomorrow—was considered the deadline (however erroneously), the justices could easily just push it back by exactly the interval that had passed between the stay on Saturday, December 9, and when the Court chose to rule. The fixation on December 12 was wrong from the beginning. Twenty states, including California, wound up not making the deadline anyway. December 18, when the Electoral College met, was an alternative. So was January 6, when Congress assembled to tally the electoral votes. But Boies never offered fallback dates.
Even Inauguration Day wasn’t a drop-dead cutoff. The Twentieth Amendment, passed in 1933, provided that Congress could select an acting president if nobody was yet “qualified” for the job. The speaker of the House, a Republican, was next in the statutory line of succession, but not the required choice. As one scholar suggested, “Surely Bill Clinton would be willing to stay on for a few more weeks.” Were the odds high that Congress would call on the Twentieth Amendment? Obviously not. Could Gore easily have mentioned it to any court worried about December 12? Of course. The game for Gore was always to buy more time.
At half past noon, Bush v. Gore was adjourned, and the nine justices went into their private conference. Meanwhile, in Tallahassee, committees in each house of the Florida legislature passed resolutions that, if approved by the full bodies, would appoint a Bush slate of electors—regardless of the outcome at the Court. In the whirl of activity on this last Monday of the 37 days, the most unlikely participant was the Florida Supreme Court. Acting as if they wished to be in Washington defending their honor themselves, the judges issued a revised opinion in the first election appeal—the ruling that the U.S. Supreme Court had tossed back a week earlier. By a 6-to-1 vote, the judges explained that when they extended the deadline for certifying the election, they simply were reconciling conflicting election statutes that had been enacted long before the present election took place. With Bush v. Gore pending at the U.S. Supreme Court, the effect of the Florida ruling might have given the justices, yet again, another chance to get out of the way. Instead, they ignored the ruling.
For a day and a half, the justices bumbled their way through to six different opinions. The outcome—no more recounts and no more tries for the Florida Supreme Court—wasn’t in doubt, though some justices and clerks at the time thought it might be. Kennedy’s clerks in particular worried about his wandering doctrinal eye—if he had any consistent philosophy other than being the lawgiver—and sought to keep him away from Breyer. Though O’Connor wanted somehow to be part of a middle ground, Breyer recognized she wasn’t open to more recounts. Thomas said he pulled his first all-nighter since law school.
The bilateral dramas were aggravated by the squeeze of time. Because the pressure to get a decision out was so intense, the justices didn’t have the chance to review each other’s final drafts—which was why the ultimate product read as tortuously as it did. It was less than the sum of its parts. It was also why the four dissenters weren’t able to unite to produce a single opinion. If all the justices agreed on little else later on, they recognized their work in this defining case wasn’t their best.
On Tuesday night, just before 10, the Court ruled. The justices did so not from the great courtroom—the way other decisions came down—or in any other fashion that signified what they were doing. Instead, they went home beforehand, through the basement garage, in the stealth of the night. The ruling failed to include the usual summary at the beginning—there just wasn’t time. That’s why the Florida Supreme Court had released its opinions differently, with a spokesman announcing if a lower-court decision had been either upheld or overturned. The U.S. Supreme Court simply put out stacks of the 65-page ruling in the press office and left it to the media to figure things out, which they attempted to do in real time, on live television, shivering in the December air outside the Court. It was like the Clue board game for constitutional law—Anthony Kennedy in chambers with a quill pen. It was a fitting last act both for the Court and for the media.
Just as they had on Saturday when they halted the recount, the justices split 5–4 for Bush. Sure enough, they based their manufactured rationale on equal protection. Because there weren’t uniform standards, the recount was unconstitutional. And because the Court said the deadline of December 12 had to be honored—it happened to have only two hours left at this point—there was, darn it, just no time to return the case to Florida.
The main opinion was unsigned, but Kennedy had drafted most of it. Because the proposed statewide recount seemed to “value one person’s vote over that of another,” it denied their votes “equal dignity.” He even had the temerity to invoke Reynolds v. Sims, the 1964 Warren Court decision establishing one person, one vote. That principle—to facilitate an electoral say for all—seemed to cut directly against what Kennedy was now saying. In his mind, it was better to exclude ballots that weren’t susceptible to a mechanistic determination of voter intent.
But he never explained why subjectivity in this one area of the law was a constitutional problem. Courts tolerated subjectivity all the time. How, for example, was assessing a witness’s testimony in a trial different from interpreting “marks or holes or scratches on an inanimate object”? Well, according to Kennedy, “the fact-finder confronts a thing, not a person” when assessing ballots rather than witnesses. But that hardly was a difference. Nor did Kennedy apparently think through what he really meant by equal protection. What, exactly, was the harm of County A counting a dimpled chad and County B not doing so? The worst that could happen was that ballots in County B would be wasted. There was the same probability of an undercounted ballot going for Bush or Gore. Neither would suffer greater injury—unless the bigger risk was to Bush because he was ahead. Kennedy’s assertion sounded a lot like Scalia’s lame makeweight to justify the stay.
The basis for Kennedy’s objection to manual recounts was all the more unconvincing because the alternative was to do nothing. Leaving all undervotes uncounted did treat them equally, but that outcome seemed particularly unreasonable if the undervotes weren’t caused purely by human error. What could account for punch-card ballots registering undervotes up to eight times more often than optical-scan ballots (the ones that look like an SAT answer sheet)? That seemed like the result of physical design, in which case the disparity in error rate itself raised equal protection problems, throwing into question the validity of the vote in the entire state. There simply was no good reason for different voting systems, other than to indulge budget and inertia—which surely were inadequate justification to undercut what Kennedy called the “fundamental” right to vote. As Breyer pointed out in dissent, “Voters already arrive at the polls with an unequal chance that their votes will be counted.” Based on Kennedy’s logic, one could argue that manual recounts were constitutionally mandated because of the inherent unfairness in voting systems.
Each of the four liberals wrote a dissent. Breyer and Souter acknowledged an equal protection issue—which is why many Republicans wrongly claimed it was a 7-to-2 ruling—but said Florida could fix it. Ginsburg and Stevens at last argued that the Court shouldn’t be opining anything other than that it was ill-advised to opine.
Rehnquist had wanted to write the main opinion. It wasn’t about exercising his privilege to do so if he was part of the majority. It was about his title—chief justice of the United States—lending weight to a ruling, as Earl Warren had done in Brown. However, Rehnquist couldn’t find four other votes. The day before, he had circulated a draft opinion that berated the Florida Supreme Court for a ruling that was “perhaps delusive.” But he recognized he had to address his own hypocrisy, the pot attacking the sins of the kettle. He had made his reputation defending states from federal intrusions. “In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law,” he wrote. This case, though, was no “ordinary election,” but one for “the only elected officials who represent all the voters in the nation.” Scalia and Thomas joined the opinion, but neither Kennedy nor O’Connor wanted any part of the chief’s language, which was why Rehnquist’s opinion was only a concurrence.
The net effect of the splintered majority was to underscore that although the five agreed on a result, they couldn’t agree on a reason. A constitutional diktat without principle might resolve the immediate dispute, but it eroded faith in the Court, especially when the five justices awarding the presidency to the Republican all happened to be appointees of Republicans. The weakest element of both the majority opinion and Rehnquist’s concurrence was that neither ever explained why the Court was the correct branch to intervene. Congress wasn’t even mentioned. Any branch that settled the election was going to be pilloried by half the country. That implacable division should have given the Court all the more inducement to stay away. Stevens’s sorrowful dissent drove home the point. “Although we may never know with complete certainty the identity of the winner of this year’s presidential election,” he wrote, “the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
The Court hadn’t learned. In earlier episodes, it was always the failure of the justices to justify their involvement that did them in. Such was the lesson of 1876, when the vote of a single justice, sitting on a special electoral commission, bestowed the presidency on Hayes. Roe v. Wade illustrated what happened when the patina of principle, developed over many years—in a case like Brown v. Board—disappeared from a ruling. Now, Bush v. Gore showed what the institution stripped of apparent neutrality looked like. The astonishing thing about the case was that in this once-in-a-century political standoff, in which the Court should have gone out of its way to say why it should be the one to step in, it offered nothing. Such unexplained arrogation of power, more than vulgar partisanship, was the hallmark of the case.
So, too, was scorn for a state court. The majority’s “federal assault on the Florida election procedures,” Stevens wrote, was rooted in a “lack of confidence in the impartiality and capacity” of state judges. It was one thing to distrust courts in the South during the 1950s and ’60s, when judges sometimes defied federal civil rights laws; in such cases, the justices intervened. But the Florida Supreme Court was hardly of “the Jim Crow South,” as Ginsburg pointed out. Moreover, the Florida court had applied election law “liberally,” recognizing absentee ballots that a more technical reading would’ve rejected. That benefited Bush. Had the Florida court ruled the other way, Gore would have taken the lead by thousands of votes. As the scholar Jack Balkin wrote, none of the justices in the Bush v. Gore majority complained about “this change in Florida law.”
The most disingenuous part of the majority opinion was its jaw-dropping disclaimer. Here the Court was issuing what read like a bold pronouncement, Warren Court style, about the importance of equal protection in electoral matters. In theory, the ruling might reshape the conduct of most American elections. But no, Kennedy said, the ruling was “limited to the present circumstances,” a snowflake that melted before it reached the ground. “Limited to the present circumstances” was about as convincing as the “penumbras” and “emanations” of an earlier Court ruling about the constitutional basis of marital privacy. The justices had enough confidence in their logic to decide the presidency today, but it wasn’t sound enough to be used in a gubernatorial race tomorrow. And indeed Bush v. Gore has been cited in only one Court case since (a tangential reference in a Thomas dissent).
Lightning bolts just weren’t the Court’s way. Because it decides so few appeals, and because its rulings are the law of the land, the Court selects cases that will have sweeping application. One-off rulings like Bush v. Gore—in “the same class as a restricted railroad ticket, good for this day and train only,” as a justice put it in a 1944 dissent—not only squandered the Court’s time, but opened it up to suspicion that decisions were driven by results. Scalia himself had said as much just a few years before, in a lone dissent in the ruling that made the Virginia Military Institute coed. The Court “does not sit to announce ‘unique’ circumstances,” he wrote. “Its principal function is to establish precedent—that is, to set forth principles of law that every court in America must follow.” Yet Bush v. Gore, the Court commanded, had no precedential value. Its presidential value, however, was immeasurable.
It made sense that the majority wouldn’t stand by its improvised ruling for the long haul. Conservatives had long been loath to use the Fourteenth Amendment to expand voting rights. Kennedy and the other four justices knew what their ruling might unleash in the hands of future liberals. “The problem of equal protection in election processes generally presents many complexities,” Kennedy wrote. Well, yes, a sudden, extemporaneous revolution of equal protection doctrine was “complex.” Following its logic, Bush v. Gore might discredit every statewide election in America. Standards were standards, whether for recounts or for the initial counts we call elections. And so the ruling was “limited to the present circumstances.”
Announcing a profound change in the law that conveniently benefited Bush—and then disavowing the change—came across as unadorned favoritism. At whatever level of consciousness, the goal seemed to be to install a Republican in the White House, where for the next four years he could anoint the justices’ new colleagues. Bush v. Gore was the ultimate conflict of interest for the justices, in which the conservatives seemed to act to consolidate their 5-to-4 majority. This was the Court trying to pack itself. Whatever else one thought of Roe v. Wade, nobody imagined that the seven justices in its majority acted out of selfishness.
“Equal protection” was a sham in Bush v. Gore. Did the majority seriously believe the ruling would be the same in a hypothetical Gore v. Bush, in which Gore led by 537 votes and Bush sought a recount? Assume in this alternate scenario that the Florida Supreme Court blocked any recounts. Bush would have appealed to the justices to “count all the votes.” It was fair to guess that the five conservatives would not have paid tribute to equal protection. Rather, they would have done precisely the converse of what happened in Bush v. Gore—either set counting standards themselves or ordered the Florida court to do so. They would have ignored the December 12 deadline without hesitation. And the four dissenters likely would have figured out a way to call for the end to the whole thing and to hand the presidency to Gore. Nobody would be applying for judicial sainthood.
Kennedy ended his opinion, straight-faced, with a peroration about how “none” stood “more in admiration” than the justices of “the Constitution’s design to leave the selection of the president” to “the people.” The claim was laughable, for it was the political process that Kennedy, most especially, didn’t respect. Congress, elected by “the people,” could not be entrusted to settle the election. Why was it up to the Court? Kennedy blamed the litigants. “When contending parties invoke the process of the courts,” he wrote, “it becomes our unsought responsibility to resolve the federal and constitutional issues.” That was overwrought hooey. The justices were forced to hear nothing. Accepting jurisdiction in the 2000 election showed not respect for the rule of law, but the hubris of kings. Nobody “forced” Kennedy or the other four to hear Bush v. Gore. Nobody “forced” them to pick a president. In the first instance, they had to choose who chose—Congress or the Court. And the justices chose themselves. Bickel would have been appalled. One law professor called Bush v. Gore “almost a parody of the Bickelian notion of judicial restraint.” Bickel’s “passive virtues” had been turned into the “passive-aggressive virtues.”
What Bickel had appreciated that the Bush v. Gore majority did not was the Court’s limited reserve of institutional capital. If the justices had mythical status in American government, it arose in part from their distance. By choosing not to act—even in this peculiar situation—they could have demonstrated the resilience of the other, political branches. On the most politically charged question—who would be president—the justices could have shown respect for, rather than doubt in, those branches. Indeed, Bush v. Gore seemed in the same league as Dred Scott. A commentator had written of the latter: “A question which involved a Civil War can hardly be proper material for the wrangling of lawyers.” The same might be said about a question that involved a presidential election.
Bush v. Gore could have been a shining moment for the Court. Instead, the Court couldn’t wait to rush in, twice. Foolishly, the justices believed their involvement would ennoble the outcome. It did not. The justices succeeded only in sullying the Court’s reputation.
Seventeen years later, Chief Justice Roberts recognized the problem, though in a very different context. In an important case about the constitutionality of extreme gerrymandering based not on geography but on maximizing partisan advantage, he worried about making the Court the arbiter. “We will have to decide in every case whether the Democrats win or the Republicans win,” he pointed out during the argument in Gill v. Whitford in the fall of 2017. “If you’re the intelligent man on the street and the Court issues a decision—and let’s say the Democrats win—that person will say, ‘Well, why did the Democrats win?’ ” Even if the Court explained that the Constitution compelled the answer, that person “is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans.” According to Roberts, that would cause “very serious harm to the status and integrity” of “this Court in the eyes of the country.” That sure sounded like an indictment of what the Court had done in Bush v. Gore. But it’s a pretty good bet that had Roberts been on the Court at the time of Bush v. Gore, he would have been part of the majority.
Had the Court not interceded, and had a statewide recount in Florida not produced an outcome that both candidates blessed, the dispute would have landed in Congress on January 6—and Bush would have won anyway. That made the intervention of the five justices even less rational.
The denouement might have looked like this: If Congress had had two slates of Florida electors before it—one sent by the state legislature, the other by the state supreme court—the Senate and the House would each have had to choose a slate. That was how the Electoral Count Act drew it up. The GOP-controlled House would go for the Bush slate. But with the incoming Senate divided 50–50 between Democrats and Republicans, the body’s presiding officer got to break the tie. The Constitution made that individual the vice president, who was still in office until January 20. Gore would be in the position of deciding in favor of himself.
But according to the Electoral Count Act, the Senate was supposed to pick the slate that that had been “ascertained” by the governor. That would’ve meant a Bush victory—unless the Florida Supreme Court declared the governor’s signature a nullity and ordered another executive—perhaps the state attorney general, who was a Democrat—to sign in his place. Or perhaps the Florida court itself would have simply “ascertained” a slate. It would’ve been uncharted political terrain and spellbinding theater, but squarely within the contemplation of those who wrote the Electoral Count Act. The likely result: continued deadlock.
If the House and Senate failed to agree on a slate, the Twelfth Amendment would have kicked in, requiring the House to name the president. Again, Bush would’ve won. But the Senate got to choose the vice president. Gore’s tiebreaker would’ve gone to Lieberman (who also, as a senator, would have voted for himself). For many Americans, a Bush-Lieberman coalition would have constituted rough justice.
Could a completed Florida statewide recount have produced numbers that all sides accepted, obviating the need for congressional resolution? That was unlikely, given the range of reasonable counting standards available. In the months that followed Bush v. Gore, media and academic organizations conducted studies of the ballots and reached a consensus. If all disputed ballots—undervotes as well as overvotes—had been counted, Gore would have won. But if only undervotes were counted—which is all the Florida Supreme Court directed—Bush would still have been ahead, thereby rendering extraordinary congressional action unnecessary.
Different justices dealt with the ruling’s aftermath in their own ways. The very next day, Thomas told high school students in Washington that a justice’s partisan preferences had played “zero” part, and to suggest otherwise was “like slurring the process.” Rather, he said, “the last political act we engage in is confirmation”—which of course was contradicted by the reality that most healthy justices who retired chose to do so when the White House was controlled by the party with which they were associated. Rehnquist, stopping by the Court’s press office that afternoon, endorsed Thomas’s view. Others just snickered. Writing in the law review of Thomas’s alma mater, one scholar asked whether he also “believed in Santa Claus, the Easter Bunny, and the Tooth Fairy.” There was nothing surprising about Thomas’s protestation. Accusing your colleagues of partisanship, let alone acknowledging your own, demolished the idea that the justices serve on a principled Court. Such was the way around any cognitive dissonance.
Over the years, Scalia was defiant, predictably so but no less hypocritically. It wasn’t that he believed the Court had made an intellectually plausible equal protection argument—he reportedly told a colleague it was “a piece of shit.” He simply presumed the justices had to act—“an easy case, it really was,” he claimed. It was as if Scalia believed the Court’s choice was little different from its decision to intervene in school segregation. “We were the laughingstock of the world—the world’s greatest democracy couldn’t conduct an election,” he told Charlie Rose, omitting where it was in the Constitution he unearthed a “laughingstock of the world” clause that allowed the Court to disregard explicit text that left to Congress the resolution of electoral disputes for the presidency. “Some court was going to decide it,” he said matter-of-factly. Sometimes Scalia had a more smug response when asked about Bush v. Gore. “Get over it!” he declared. Souter confided to friends that he never did, so embarrassed was he about the ruling.
Only O’Connor publicly came to regret her vote. At first, she couldn’t fathom why anybody might be so upset the justices intervened. An article in USA Today six weeks after the ruling especially caught her attention. The piece detailed the “lingering bitterness” among law clerks. Her obliviousness to how the ruling played was understandable, even if she once had been a ranking politician in Arizona. The Constitution’s structure planned it that way, isolating justices from the body politic. Even the dumbest senators had a sense of their constituencies. A decade later, in retirement, O’Connor still seemed to have little patience for the criticism, telling a conference in Aspen that “it wasn’t the end of the world…so forget it.”
But by the spring of 2013, she found she hadn’t been able to. Her tone was different, perhaps because of the Court’s unrelenting interventionism in other areas since, and perhaps at 83 she had developed more humility. “Maybe the court should have said, ‘We’re not going to take it—goodbye,’ ” she told the Chicago Tribune editorial board. Bush v. Gore “gave the Court a less than perfect reputation” and “stirred up the public.” And though Florida judges “kind of messed up” some of their rulings, she admitted, “probably the Supreme Court added to the problem at the end of the day.”
If only she had spoken up 13 years earlier.
By the time of the 2000 election, Roe v. Wade had been the bête noire of the American right for nearly three decades. For justices like Scalia and Thomas, the ruling epitomized the sins of an activist Court, adrift from its constitutional moorings. In Bush v. Gore, the Court came full circle. Constitutional law had become the continuation of politics by other means. The lesson for conservatives was Justice William Brennan’s Rule of Five. Roe was of course about abortion, whereas Bush v. Gore was about an election. But they were flip sides of the same coin at the Court: “If you have five votes here, you can do anything.” Though Roe hadn’t been overturned, the conservatives in Bush v. Gore got even sweeter revenge. The raw power exercised in the former had come home to roost in the latter—poetic justice of a sort. One who lives by the judicial sword dies by the judicial sword.
Roe was based on substantive due process, Bush v. Gore on a dishonest view of equal protection. But the interpretive mechanisms weren’t the point. Both liberals and conservatives now had fully embraced judicial triumphalism.