With Bush leading by only 1,784 votes, Miami-Dade County sought to recount 10,750 ballots that the machines had been unable to tally. Fearful that a recount would reverse the result and give Al Gore the presidency, Republican campaign operatives, many of them congressional staffers, disrupted the recount at a critical juncture, shutting it down entirely. The stakes were so high, Republicans had taken to the streets. Sometimes referred to as “the Brooks Brothers riot,” the violent protest—Democrats were trampled, punched, and kicked—was set off by Representative John Sweeney of New York, who directed an aide to “shut it down.” (Bush rewarded him with the nickname “Congressman Kick-Ass.”) Right in the middle of fomenting chaos once again was Roger Stone, the self-described “Republican hit man” who would play a key role in organizing the January 6 assault on democracy as the main conduit between Trump and groups like the Proud Boys, who shared with the Brooks Brothers rioters a commitment to the kind of thuggery and raw physical intimidation as a political tool that the National Socialists in 1930s Germany used to legally take over the government and turn it into an autocracy.
The standoff over the 2000 Florida recount went all the way to the Supreme Court, where Bush was represented by Federalist Society founder Ted Olson and a legal team stacked with the society’s rising stars. Five Republican appointees voted to countermand the Florida Supreme Court and halt the recount of ballots, allowing a previous certification of the vote to stand for Bush, who thereby won Florida’s electoral votes. That gave Bush 271 electoral votes, one more than the 270 required to claim the presidency. Rather than petition the Florida Supreme Court, Gore decided to accept the high court’s decision, unite the nation, and concede the election to Bush.
The Supreme Court’s majority decision was nakedly political, an egregious performance, wrong on both the facts and the law. There was nothing “conservative” about this intervention. The five right-wing justices ruled in a way that was inconsistent with their prior jurisprudence, deciding to involve the federal judiciary in a matter that should have been left to the states. It is clear that Republican judges only believe in “state’s rights” when the states agree with their stance. One sentence in the majority opinion indicated that its logic only applied to “the present circumstances,” and therefore was intended to set no future precedent. This was the tell that the majority realized its holding was untenable—but didn’t care, since this was a move all about power; they had the votes, so they used them.
Scalia, in on the scam but too proud in his independence of mind not to call bullshit when he smelled bullshit, actually told a colleague at the time, referring to the legal reasoning behind Bush v. Gore, “as we say in Brooklyn, a piece of shit.” Specifically, Scalia was referencing the attempt to justify the move to stop the Florida recount on the argument that variations in the sets of standards different Florida counties used to determine how to count ballots amounted to a violation of the Equal Protection Clause of the Fourteenth Amendment of the Constitution, from 1868, which held, “nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” (The clause, seeking to bolster the Civil Rights Act of 1866, was used to form the basis for more liberal Supreme Court decisions such as Brown v. Board of Education in 1954, finding racial segregation in schools unconstitutional. It wasn’t a conservative favorite.)
Scalia was not the only justice to find this argument, pushed by Kennedy, absurd; apparently, Kennedy believed it somehow made a monstrous ruling—and usurpation of the legitimacy of a U.S. president—seem more “fair.” The fix was in and everyone knew it, even if most Republicans shut up about it. A prominent exception was Republican senator Chuck Hagel, who admitted in a November 2000 appearance on Hardball with Chris Matthews on MSNBC, “It may well be…the only way you’re going to resolve this in a fair way, in a way that’s perceived as being fair by both sides, is recount all sixty-seven counties in Florida.” Hagel was right. A clean and thorough recount was the only way to make the unruly process fair. But Republicans did not care about fair—and the Federalist Society and its network, hungry to replace Bill Clinton with a Republican who could appoint legions of Federalist Society judges, cared not at all about fairness, only about getting the result they wanted.
As one Supreme Court law clerk at the time told Vanity Fair in 2004, emphasizing how unthinkable it was to clerks that the court would involve itself in the Florida recount, “It was just inconceivable to us that the Court would want to lose its credibility in such a patently political way. That would be the end of the Court.”
David Margolick, who interviewed former clerks for Vanity Fair in 2004, summed up their sentiments about what happened this way: “Now out in the working world, the two clerks, along with most of their colleagues who worked for the four liberal justices and the occasional conservative justice, remain angered, haunted, shaken, and disillusioned by what they saw. After all, they were idealists. They’d learned in their elite law schools that the law was just and that judges resolved legal disputes by nonpartisan analysis of neutral principles. But Bush v. Gore, as seen from the inside, convinced them they’d been sold a bill of goods. They’d left their clerkships disheartened and disgusted.”
Just as the Republican forces mobilized in Florida to work on behalf of the Bush cause outmaneuvered and outmuscled the Democrats, under the leadership of former secretary of state James Baker, a tough political street fighter matched up against wan, punchless, dithering Warren Christopher, so, too, did the conservative Supreme Court justices and their enablers outmaneuver their opposite numbers on the court on Bush v. Gore. As one former clerk explained to Margolick, “They gave just enough cover to the five justices and their defenders in the press and academia so that it was impossible to rile up the American people about these five conservative ideologues stealing the election.”
The insidious nature of the Federalist Society’s key role in stealing an election runs much deeper simply than the role of Olson and a vast legal team that included future Supreme Court justices John Roberts, Brett Kavanaugh, and Amy Coney Barrett, each of whom chipped in on the frantic legal wrangling and strategizing unfolding behind the scenes and establishing bona fides for their futures.
Federalist Society clerks also played an important role in seeking to keep Kennedy in the majority. As Evan Thomas wrote in his biography of Sandra Day O’Connor, during the frantic maneuvering on the case, “For a moment, Kennedy seemed to waver and tip into the liberal camp.” The case would be sent back to the Florida court for fixing; the recount would continue. What brought Kennedy back? According to law clerks at the time, Kennedy’s clerks were plugged into the Federalist Society network working to install Bush. “We assumed that his clerks were coordinating with Scalia’s clerks and trying to push him to stay with the majority,” explained one clerk.
Several of the justices in the majority had partisan and personal motives to rule as they did. As Clarence Thomas was deciding who would be the next president, Ginni was intimately involved in the Bush campaign, working for the right-wing Heritage Foundation to draw up lists of potential Bush appointees to be forwarded to the White House. But the swing vote belonged to O’Connor, who despite voting to protect abortion rights and generally demonstrating a streak of independence in her past opinions, was still first and foremost a lifelong Republican. Acting more like the Republican State Senate leader she once was in Arizona than a judge, O’Connor was hell-bent on stopping the recount, period, full stop. Law clerks later leaked that O’Connor had circulated a draft opinion the night before the decision that used entirely different logic to reach her preferred result than what the final opinion reflected. This would be a partisan, unprincipled decision, a political result looking for a legal rationale.
In his book Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election, Jeffrey Toobin reported that O’Connor looked stricken at an election night party in November when the networks initially called Florida for Gore. O’Connor’s husband told guests at the party that the justice was angry because the couple wanted to retire to Phoenix, and she did not want a Democratic president to name her successor. Thus, according to O’Connor’s husband, a Gore win would have meant four more years in Washington. Chief Justice Rehnquist had also reportedly told associates of his desire to retire sooner rather than later.
“The decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history,” wrote Harvard Law professor Alan Dershowitz, “because it is the only one that I know of where the majority of justices decided as they did because of their personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.”
Polls showed that by substantial margins the public believed personal politics influenced the decision of the justices and that faith in the integrity of elections had declined. A year after the election, the nonpartisan Florida Ballots Project concluded that if the dispute over the validity of all ballots in question had been consistently resolved and uniform standards for counting ballots applied, Gore would have won the election. In other words, Gore had won the election, the American people had elected him president, but that victory was stolen. Concerned about the stench surrounding the decision—call it a demonstration of consciousness of guilt—no Republican justice retired during Bush’s first term. Still, the stolen election denied Al Gore the possibility of appointing justices to the bench, and it set the stage for a Federalist comeback later in the 2000s.