The turning point in Antonin Scalia’s life on the Supreme Court, and indeed a turning point for the entire nation, began on the evening of November 7, 2000, the day of the presidential election between Democrat Al Gore and Republican George W. Bush. But it was Justice Sandra Day O’Connor who first felt its effects. O’Connor, a seventy-year-old cancer survivor, and her husband, John, were attending an election night party at a friend’s house. Huddled around a small television, they awaited the release of the early East Coast returns. Polls closed at 7:00 P.M. in most of Florida except for the portion of its northwest panhandle in the Central Time Zone. By 7:45, the Associated Press, CNN, and soon the major networks declared that Gore had won Florida.1
“This is terrible,” Justice O’Connor said after hearing the report. Without Florida, she knew, Bush had little chance of winning the election.2 “Moments later,” Evan Thomas and Michael Isikoff of Newsweek reported, “with an air of obvious disgust, [O’Connor] rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst.”3 John O’Connor told her friends, “She’s very disappointed because she was hoping to retire.” He added that she would not want to leave the choice of her replacement to a Democrat in the White House. He did not mention one reason for her desire to retire was to spend more time with him, because he was suffering from Alzheimer’s disease.4
As the election played out, however, the outcome of the Florida vote was not so easy to determine. While Gore had a half-million-vote lead in the national popular vote, neither candidate had the required 270 electoral votes. Each needed Florida’s votes to win, and the winner of that state’s twenty-five electoral votes was still in doubt. By 10:00 P.M., newscasters were calling it “too close to call,” giving the Republicans new hope. At 2:18 A.M., the networks declared Bush the winner in Florida, and thus winner of the election. But with the larger counties still counting votes, Bush led Gore by only 629 votes at 3:26 A.M., putting the state once again in the “too close to call” category. An hour later, it was apparent that the election was so close that some counties would have to recount their votes, and pundits predicted lawsuits over the Florida election.5
By dawn, Bush’s margin of victory in Florida was 1,784 votes, triggering an automatic machine recount. While many newspapers reported a Bush victory, without Florida’s twenty-five votes he could claim only 246 electoral votes to Gore’s 267. Having lost the eleven votes of his home state of Tennessee, Gore was still three votes short of victory.6 So the nation waited.
Justice O’Connor, like most of America, found her conversation dominated by the stalemated election. The justice’s brother, Alan Day, argued that the Supreme Court would soon be facing this issue, but O’Connor vigorously disagreed. “Oh no,” O’Connor was reported as saying, “it could never go to the Supreme Court. That’s a state matter.” Then a few days later, during a dinner that O’Connor gave for her brother and some friends, she explained the reason for her certainty that this issue would never be resolved in her Court: “It’s a mess and they [the members of the Florida government] need to straighten it out.” In explaining her views, Alan Day recalled his sister’s “general annoyance” over the course of the difficulties Florida faced in determining a winner of their presidential vote.7 But the battle over the election was just beginning, and Justice O’Connor could not have known that the matter would literally end up on her desk.
The Constitution clearly places the power over organizing elections and counting the votes in Article I, Section 4: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.” When it comes to presidential elections, Article II places the power to choose the winner in the hands of an electoral college staffed by delegates sent by state legislatures. According to Article II, Section 1, the only federal power here was: “The Congress may determine the Time of Chusing the electors, and the day on which they shall give their Votes; which Day shall be the same throughout the United States.” The Twelfth Amendment changed the determination of the winner of the states’ electoral votes from the state legislatures to the voters. With the Constitution clearly intending for the states to regulate elections in most situations, it is hard to imagine that the Framers would have wanted the Supreme Court determining the will of the voting public.
But it had happened before. The Supreme Court intruded in the disputed presidential election of 1876 between Democrat Samuel Tilden and Republican Rutherford B. Hayes. That year’s election also involved twenty disputed votes in four states, one of which was Florida. To win, Hayes needed all twenty votes. Following some shady political dealings, an electoral commission awarded Hayes all twenty Electoral College votes, and the presidency. The political fallout was extensive. The prestige of the Supreme Court, which had participated in the Electoral Commission, was diminished due to the perception of a partisan grab of the presidency by one Republican Party–oriented member of the Court, Joseph Bradley. In response, Title III, Section 5 of the U.S. Code, the Electoral Count Act of 1887 was passed, requiring states to make a final determination of their presidential vote at least six days before the meeting of the presidential electors. Then the votes entered a “safe harbor,” during which the electors’ votes could not be challenged before being counted at the meeting of the Electoral College.8
Rather than requesting a statewide recount of the votes in Florida, Gore requested a recount in only four heavily Democratic counties where he believed the Democratic vote was underreported: Miami-Dade, Palm Beach, Volusia, and Broward. Two clocks began ticking. First, Florida law required that all counties certify their vote counts within a week of the election, leaving little time for the recount. The state’s Republican secretary of state, Katherine Harris, gave no indication that she would allow any extension, seeming eager to certify the election for Bush (on whose campaign she had worked). More importantly, due to the provisions enacted after the Hayes-Tilden election, the state vote had to be certified by December 12, six days before the electors were to meet on December 18. That gave Florida only thirty-five days to determine its Electoral College vote. As the recount proceeded, Bush’s lead began to evaporate until on November 9, two days after the election, his margin stood at only 537 votes.9
On Saturday, November 11, the Bush reelection team filed suit in federal district court to end the hand recounts of the ballots, but the request was rejected. Meanwhile, acting under state law that required certification of the vote within seven days of the election, Katherine Harris ruled that manual recounting should be stopped, spurring a court challenge by Gore’s legal team in Florida’s state courts. On Thursday, November 16, the Florida Supreme Court ruled that the manual recounting of votes in three disputed counties, Palm Beach, Miami-Dade, and Broward, should resume and enjoined the certification of the election. On Sunday, November 19, conservative New York Times columnist William Safire, evincing an unusual mixture of acerbic reading of history and constitutional hope, summed up the crisis by saying to host Tim Russert on Meet the Press, “in moments like these, some nations turn to their generals, and we turn to our lawyers.”10 The Palm Beach County Canvassing Board filed suit against Harris, and on November 21, the Florida Supreme Court ruled unanimously that to protect the “right of suffrage,” which is “the pre-eminent right contained in the [Florida] Declaration of Rights,” a full manual recount of the three counties had to be completed beyond the formal deadlines and included in the final state voting tally. This meant that the certification date for the election had to be pushed back to November 26.11
Three days later, on November 24, the United States Supreme Court agreed to hear an appeal from Bush to the Florida Supreme Court decision, and the legal battle of Bush v. Gore was joined. On November 26, Harris refused to grant Palm Beach County more time to recount the votes and certified the victory for Bush. Immediately thereafter, Governor Jeb Bush—the candidate’s brother—certified the twenty-five Republican electors to Congress, and sent the required “certificate of attainment” to the National Archives the following day.12
Once the fight came to his Court, Scalia knew the stakes. After months of rumored threats that he would resign if Gore won the election, and seeing firsthand the deteriorating condition of seventy-six-year-old Chief Justice William Rehnquist at the head of the Court’s conference table, Scalia could surely sense that an opportunity for advancement might fall into his lap. Bush had said that he admired him, and if he were elected he might elevate Scalia to the center seat. But how could Scalia make that happen? His originalism and textualism would be of no use now, because, as Justice O’Connor had said, the language of the Constitution made this election a state matter, and there was no obvious federal role here. Nevertheless, Scalia wanted George W. Bush in the White House, and he was prepared to use his judicial resources to help put him there.
As the Court was preparing to hear the appeal of the Florida Supreme Court’s extension of the certification period, Scalia’s task seemed clear. He needed to persuade both O’Connor and Anthony Kennedy to join his side. Many in the Supreme Court building had heard about O’Connor’s election night outburst. And according to David Margolick in Vanity Fair, when law clerks from several chambers gathered for dinner on November 29, one of O’Connor’s law clerks told the others that her boss “thought the Florida Court was trying to steal the election and that they had to stop it.”13 As a result, O’Connor was emphatically against Gore, and her clerk believed that, in Margolick’s account, she “was determined to overturn the Florida decision and was merely looking for the grounds.”14
The Court found sufficient grounds on December 4, remanding the case to the Florida Supreme Court for clarification of its initial decision. In an unsigned, per curiam decision, the Court ruled: “As a general rule, this Court defers to a state court’s interpretation of a state statute. But in the case of a law enacted by a state legislature applicable not only to elections to state offices, but also to the election of Presidential electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the United States Constitution.” The Court was not willing to allow the Florida Supreme Court to preempt what the U.S. Supreme Court saw as the exclusive power of the state legislature to organize the election or to change the “safe harbor” provision for the election of the president in the U.S. Code that had been passed in response to the Hayes-Tilden contest. By asking for more clarification, the conservatives on the Court seemed to be stalling for time to run out the electoral clock.
As the hours went by, O’Connor’s position hardened. That evening, when the subject of the case was raised at a party being attended by the O’Connors, the justice became “livid” and said, “You just don’t know what those Gore people have been doing. They went into a nursing home and registered people they shouldn’t have. It was outrageous.”15 While this sort of thing was commonly done by both parties, not to mention that it had nothing to do with the constitutional issues in this case, two points were now clear. More seemed to be going into the decision of this case than the facts and issues in the legal briefs, and O’Connor was in Bush’s corner. This made the deciding vote in the case that of Anthony Kennedy. Whichever side controlled his vote would win.
The Florida Supreme Court never responded to the Supreme Court’s request for clarification. Instead, on December 8, just four days before the electoral vote was to enter its “safe harbor,” it ruled by a 4–3 vote that the manual recount of the “undercount” ballots in Miami-Dade County, which had registered no clear vote for president, be resumed. As it argued: “Through no fault of appellants, a lawfully commenced manual recount in Dade County was never completed and recounts that were completed were not counted. . . . Only by examining the contested ballots, which are evidence in the election contest, can a meaningful and final determination in this election contest be made. . . . [We] remand this cause for the circuit court to immediately tabulate by hand the approximate 9,000 Miami-Dade ballots, which the counting machine registered as non-votes, but which have never been manually reviewed.”16 But there was a problem with this order, as the Court was vague as to its execution: “In tabulating the ballots and in making a determination of what is a ‘legal’ vote, the standard to be employed is that established by the Legislature in our Election Code which is that the vote shall be counted as a ‘legal’ vote if there is ‘clear indication of the intent of the voter.’ ” In short, there would be no single, clear standard offered for each county as to how to evaluate whether the incomplete piercing of the punch-card ballots registered a vote.
The manual recount resumed throughout the state, and the Bush team, fearful that a sufficient number of ballots would be found to put Gore into the lead, immediately appealed through Justice Kennedy to the Supreme Court in seeking to stay the order to recount, arguing that it would cause “irreparable harm to the nation.” Everyone knew that whichever candidate had the lead in the vote tallies when the counting stopped had the advantage in any electoral appeal. With the case once again back in his bailiwick, Scalia sprang into action. “In a highly unusual move,” Margolick reported in Vanity Fair, “Scalia urged his colleagues to grant the stay immediately, even before receiving Gore’s response.”17 The reason, he argued to the other justices, was that he “was convinced that all the manual recounts were illegitimate . . . [and they] would cast ‘a needless and unjustified cloud’ over Bush’s legitimacy.”18 Scalia’s argument here had nothing to do with originalism or any other reading of the Constitution, but rather it had everything to do with his evaluation of the raw politics of the situation. In taking the lead pro-Bush election position on the Court, The Washington Post reported, “Whatever happens, history will record that no member of the court played a more pivotal role than Scalia.” He became, they argued, “a driving force in the court’s approach to the election.”19 Scalia argued that this was a mission being forced on the Supreme Court, telling the Post reporters: “We should not be a prominent institution in a democracy. . . . We are called in to correct mistakes. When you have to call us in, someone has screwed up; something has gone terribly wrong.”20
By chance, the night before the oral argument dealing with the request for the stay stopping the recount of the votes in the Supreme Court, Justice John Paul Stevens “bumped into” Stephen Breyer and quite naturally the two men discussed the case. Neither justice thought that the application for a stay had a chance. Years later, Stevens recalled for Scott Pelley of 60 Minutes, “I remember both of us saying to one another, well, I guess we’re going to have to meet tomorrow on this but that’ll take us about ten minutes because it had . . . obviously, no merit to it. Because in order to get a stay of—in—in any situation, the applicant has to prove irreparable injury and there just, obviously, wasn’t any irreparable injury to allowing a recount to go through because the worst that happens is you get a more accurate count of the votes.”21
But, to Stevens’s and Breyer’s surprise, and to Scalia’s delight, the Court did not see it that way. Five members, including O’Connor and Kennedy, issued a four-sentence order granting an immediate stay stopping the recount at 2:45 P.M. on Saturday, December 9. They also ordered an expedited schedule for argumentation before them, with legal briefs to be filed the next day and an unusually long 90-minute full oral argument scheduled for Monday, December 11. Eighty-year-old Justice Stevens anchored a foursome of Breyer, Ruth Bader Ginsburg, and David Souter in arguing in dissent that the Court’s power did not even extend to this case:
To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the Court throughout its history. On questions of state law, we have consistently respected the opinions of the highest courts of the States. On questions whose resolution is committed at least in large measure to another branch of the Federal Government, we have construed our own jurisdiction narrowly and exercised it cautiously. On federal constitutional questions that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion. The majority has acted unwisely.22
Anticipating the arguments in this case, Stevens also wrote in defense of democracy, “Time does not permit a full discussion of the merits. It is clear, however, that a stay should not be granted unless an applicant makes a substantial showing of a likelihood of irreparable harm. In this case, applicants have failed to carry that heavy burden. Counting every legally cast vote cannot constitute irreparable harm.” To the contrary, he argued, “there is a danger that a stay may cause irreparable harm to the respondents—and, more importantly, the public at large,” by effecting a delay in the proceedings that “would be tantamount to a decision on the merits in favor of the applicants.” Picking up on the political language being used privately by Scalia, Stevens added: “Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.”23
As always, Scalia was unwilling to let Stevens have either the advantage or the last word. In a dispute in which every minute mattered, Scalia first prevented the Court from releasing its opinion for another hour while he drafted his response to Stevens’s argument. Then, in issuing a concurring opinion for the stay, Scalia tipped off where he thought the Court was headed: “Though it is not customary for the Court to issue an opinion in connection with its grant of a stay, I believe a brief response is necessary to JUSTICE STEVENS’s dissent. I will not address the merits of the case, since they will shortly be before us in the petition for certiorari that we have granted. It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success.” Scalia suggested a Fourteenth Amendment equal protection violation here, arguing that the varying recount voting standards from district to district in Florida might raise constitutional issues as to whether some groups of voters were being treated differently from others in the state.
Then Scalia turned to politics in answering Stevens’s opinion calling for speed in continuing the recount, adding: “The issue is not, as the dissent puts it, whether ‘counting every legally cast vote can constitute irreparable harm.’ . . . The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.”24 The political nature of Scalia’s argument delighted the liberal law clerks who opposed him, with David Margolick quoting one of them as saying: “The Court had worked hard to claim a moral high ground, but at that moment [Scalia] pissed it away. . . . And there was a certain amount of glee. He’d made our case for us to the public about how crassly partisan the whole thing was.”25 But with the nation in electoral crisis mode, few were parsing these opinions closely enough to receive this message.
By the time the Supreme Court met in its conference on December 11, it was clear that the discussion in the oral arguments earlier that day about the lack of equal protection issues raised by the varying county-by-county standards for recounting ballots had had an impact on Anthony Kennedy.26 He initially voted with the four liberals to send the case back to the Florida Supreme Court for clarification of the vote-counting standards while the manual recount continued.27 This might have been due to the lobbying efforts of Breyer, who had discussed the case with his colleague from his chambers next door.28 Over the years, Kennedy had shown an inclination in deciding difficult cases toward changing his mind, often in the direction of the last justice or law clerk who talked to him. Knowing this, Scalia was determined to be that person. Margolick reveals that about a half-hour after the conference ended, having spoken to both Scalia and his own clerks, Kennedy switched and joined the conservatives in favor of Bush’s arguments. Margolick quotes one liberal jurist’s law clerk as saying: “We assumed that his clerks were coordinating with Scalia’s clerks and trying to push him to stay with the [conservative] majority.” Another added, in describing the urgency felt by the clerks in the Kennedy chambers: “They knew the presidency would be decided in their chambers. . . . They would have fought tooth and nail—they would have put chains across the door—to keep him from changing his vote.”29
With Kennedy now securely on board, Chief Justice Rehnquist set about organizing what for the Court would be an expedited one-day process of writing a draft of the majority opinion for the case overruling the Florida Supreme Court and ruling for George W. Bush.30 But it soon became clear that Kennedy’s vote would come at a much higher price, with the lofty, high-flown language on the case’s equal protection issues in the final per curiam opinion sounding more like it was drafted by him rather than the pedantic, pragmatic chief justice. Here the conservative majority of the Court argued: “When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed 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.”31
In reversing the Florida Supreme Court’s ruling and stopping the recount permanently, the final version of the per curiam opinion focused more on the equal protection concerns of Kennedy than the jurisdictional concerns of Rehnquist: “The votes certified by the court included a partial total from one county, Miami-Dade. The Florida Supreme Court’s decision thus gives no assurance that the recounts included in a final certification must be complete. . . . The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.”32
Seeking to deflect the anticipated criticism of this opinion, the per curiam made it appear as though there was more agreement on the Court about the winner of this case than really existed: “Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. . . . The only disagreement is as to the remedy.”33 This language, dealing only with the varying county vote recounting standards, caused great unhappiness among the liberal justices’ law clerks, who believed that their bosses’ dissenting views were being misrepresented. Now the Court’s liberals would be seen as agreeing with the Bush position in favor of abandoning the recount on equal protection grounds, when in fact they argued that these problems created by the varying standards for recounting votes were not insurmountable, still affording the prospect of a valid and accurate vote count by December 18.34
The majority seemed untroubled by the fact that it was ignoring its usual preference for protecting states’ rights as well as its professed abhorrence of using the Equal Protection Clause for dealing with voting issues. But the justices tried to limit the damage to their earlier precedents by adding a limiting caveat: “The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”35 In other words, this precedent would not be used to decide future cases.
The opinion closed with what sounded again like Justice Kennedy trying to make it appear that the Court had reluctantly and agonizingly been forced, against its will, to choose a new president: “None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.”36 Forced or not, just as in the 1877 Hayes-Tilden electoral commission, this decision had the effect of terminating the election recount, freezing the narrow Republican state victory, and awarding all of that state’s twenty-five electoral votes as well as the presidency to George W. Bush. In so doing, the Court substituted its own 5–4 vote for the as yet unclear voice of the voters.
In a concurring opinion, the most conservative members of the Court, Rehnquist, Scalia, and Thomas, argued that a decision to overturn the ruling of the Florida Supreme Court could also be supported by Article II, setting out the standards for electing a president, and the U.S. Code, effectively trumping Article I, Section 4. As Rehnquist explained:
In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. . . . But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them. Article II, § 1, cl. 2, provides that “each State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance. . . . If we are to respect the legislature’s Article II powers, therefore, we must ensure that postelection state-court actions do not frustrate the legislative desire to attain the “safe harbor.”37
On this deeply divided Court, the four liberals—Stevens, Breyer, Souter, and Ginsberg—each issued impassioned dissents contesting different parts of the conservatives’ arguments. Two of them, Stevens and Breyer, saw great harm. For John Paul Stevens, this case represented more than just a turning point in the selection of a president: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, 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.”38 An equally upset Stephen Breyer stood arm-in-arm with Stevens as he issued a stirring dissent connecting the political nature of the dispute with the limited nature of the judicial power that he saw to resolve it:
In this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself. . . . But we do risk a self-inflicted wound—a wound that may harm not just the Court, but the Nation. . . . What it does today, the Court should have left undone. I would repair the damage done as best we now can, by permitting the Florida recount to continue under uniform standards.39
With his controlling five votes in hand, Scalia did not appreciate the vigorous dissents by his liberal colleagues. Disagreement by the members of the Court on such a seminal issue in American democracy, he warned, would in his opinion “threaten irreparable harm” and “cas[t] a cloud upon what [George W. Bush] claims to be the legitimacy of his election.” In a remarkable case of the pot calling the kettle black, Scalia, in a memo of his own, “complained about the tone of some of the dissents.”40 The nature of the language of the dissents also bothered Kennedy greatly, leading him to complain in a memo that his objecting colleagues were “trashing the Court.”41
With the decision made, and the opinions written, it was left until the next day, December 13, for the drama of the justices announcing the 5–4 decision by reading portions of their opinions from the bench. Would the dissenters make a show of their anger about the decision? Would there be outbursts from the audience? But the nation would never know because, rather than announcing the landmark decision from the bench, as is the usual practice, the justices made their announcement of this opinion only by releasing their final written decision to the Supreme Court press. As Linda Greenhouse of The New York Times described it: “Today, after darkness fell and their work was done, the justices left the Supreme Court building individually from the underground garage, with no word to dozens of journalists from around the world who were waiting in the crowded pressroom for word as to when, or whether, a decision might come. By the time the pressroom staff passed out copies of the decision, the justices were gone.”42 The journalists were left standing in the cold outside the ornate marble court building, on live television, frantically flipping through the opinion, trying to be the first to instantly analyze and report the decision. Thanks to the votes of the five conservatives on the Supreme Court, and Scalia’s successful efforts to secure Anthony Kennedy’s vote, George W. Bush would be inaugurated on January 20, 2001.43
Scalia had been on the winning side in the most important case in his judicial career, and he had every reason to believe that he was responsible for winning the greatest judicial battle of his career. There was no need now for him to leave the Court, as staying on it would keep him in line for the chief justiceship.
Year after year, members of the Court would be asked about the case, and the unhappiness of the dissenters and the passion of their disagreement with the final judgment never dissipated. Some members of the majority in that case were unpersuaded by the criticism of its results. When reporter Jan Crawford Greenburg asked Justice Kennedy about the case for her book Supreme Conflict, he said that it was “A no-brainer! A state court deciding a federal constitutional issue about the presidential election? . . . Of course you take the case.”44 But this explains why he voted to take the case, not why he decided as he did.
Another member of the majority, Sandra Day O’Connor, initially defended the decision, but later seemed to develop second thoughts. Nearly four years after she retired from the Court, in January 2010, O’Connor was asked by CNN reporter Wolf Blitzer whether Bush v. Gore was “the right decision.” O’Connor responded, “I don’t know. It was a hard decision to make. But I do know this. There were at least three separate recounts of the votes, the ballots, in the four counties where it was challenged. In not one of the recounts would the decision have changed. So I don’t worry about it.”45 Three years later, though, during an interview with the editorial board of the Chicago Tribune, O’Connor was again asked about Bush v. Gore. This time, she said, “[The Supreme Court] took the case and decided it at a time when it was still a big election issue. Maybe the court should have said, ‘We’re not going to take it, goodbye.’ . . . Probably the Supreme Court added to the problem at the end of the day.”46
Of all the Court members who ruled in Bush v. Gore, only one justice, when asked about the case in public appearances, has remained consistently dismissive toward its critics—Antonin Scalia. When he was asked about the case six years later, following one of his public speeches, an exasperated Scalia responded: “Oh God, get over it. This is an election ago now. And the newspapers that did, newspapers, not Republicans, that did a survey, painstaking survey of how it would have come out if they had counted the dimpled chads and what are they, the dangling chads, that the Democrats wanted, [found that] they would have lost anyway.” Scalia then turned to the legal issues as he saw them:
Why did we reverse the case? . . . It was the Democrats who wanted the Courts to decide the question. They brought it into Court, so the question was ultimately whether the election of the President of the United States was going to be decided by the Florida Supreme Court or by the Supreme Court of the United States. That seems to me not a very hard question. There was no way in which we could have turned that case down. Now the basis on which we decided the case was the equal protection clause. And on that issue, the case was not even close. Seven of the nine justices agreed that what was being done in Florida—some counties counting dimpled chads, some counties counting dangling chads, there’s another category of chads what are they, dimpled, dangling and something else—they were all doing it differently. Seven of the nine agreed that that violated the equal protection clause. A person’s vote ought to count the same way in Florida.47
Court scholars knew that the eventual vote had been 5–4, not 7–2, as Scalia was now claiming, by counting a skewed interpretation of Breyer’s and Souter’s votes. So, he turned back to democratic and judicial federalism politics in concluding:
The only point on which we were in disagreement, the only point on which we were five to four, was whether having waited something like three weeks and looking like idiots—the greatest democracy in the world can’t run an election, you know? And we couldn’t have a transition team in Washington to take over from—should we give the Florida Court another two weeks to straighten it all out. That was the only point on which we disagreed and five of them said no, enough is enough, let’s put an end to it, uh it’s improper and can’t be counted. And that was the case, not a hard case and not all those who were in the four were Democrats. And to fully appreciate the case you have to read the opinion of the Florida Supreme Court. There was indeed a politically motivated Court involved in this, but it wasn’t mine.
This “Get over it” answer, that the Court, and he, had been correct in 2000, became Scalia’s short, stock response on his lecture circuit to any question dealing with Bush v. Gore. It was an interesting response, that the public should accept the decision because it was long ago and we had moved on, for the man who used the opposite argument in attempting to persuade the Court to rely on a reading of Founding Era American history to seek to overturn much older precedents. Year after year, Scalia repeated variations of this story for every journalist, legal academic, and audience who continued to ask about his version of history.48
Contrary to the expectations of Scalia and the Court’s majority, the dispute over this case did not die down, and its real impact on the Court’s prestige became clear on January 13, 2001. That day, a full-page display ad appeared in The New York Times, blaring the headline, “554 Law Professors Say,” in bold white letters on a black banner background. Below was another enlarged, boldface headline reading, “By stopping the vote count in Florida, the U.S. Supreme Court used its power to act as political partisans, not judges of a Court of law.” The protest ad continued, “We are Professors of Law at 120 American law schools, from every part of our country, of different political beliefs. But we all agree that when a bare majority of the U.S. Supreme Court halted the recount of ballots under Florida law, the five justices were acting as political proponents for candidate Bush, not as judges.” In the background of the ad were the names and schools of hundreds of prominent law professors.
The ad continued, echoing the argument of Justice John Paul Stevens: “It is Not the Job of a Federal Court to Stop Votes from Being Counted.” From there, the ad continued, “By stopping the recount in the middle, the five justices acted to suppress the facts. Justice Scalia argued that the justices had to interfere even before the Supreme Court heard the Bush team’s arguments because the recount might ‘cast a cloud upon what [Bush] claims to be the legitimacy of his election.’ ”49 The protest revealed just how much the Court’s decision had affected its prestige and its image of nonpartisanship.
Scalia could take pride that the protest ad against Bush v. Gore singled him out as the leader of the five-person conservative vote. After this decision he, too, would change his approach to working on the Court. No longer would he be trying to perfect his originalism theory in different cases, searching for converts to his cause. By abandoning originalism in Bush v. Gore, he had gotten exactly what he wanted.50 The success of this change in practice was not lost on him.
For Scalia, winning the battle of Bush v. Gore meant everything. The man who had endorsed him and his brand of originalism would be sitting in the White House. For the next four and possibly eight years President Bush, aided by legions of former and present members of the same Federalist Society that Scalia had helped to create and support over the years, some of them sitting in the Justice Department, would be sending conservative, possibly originalist-oriented jurists to the federal judiciary. Any vacancies on the Supreme Court would be filled with those who would tip the voting direction in Scalia’s favor, and who might also follow his brand of textualism and originalism.
With enough changes on the Court, Scalia might even have the chance to lead the group. Now Scalia could concentrate on his next objective: positioning himself for the inevitable vacancy in the chief justiceship. To support his candidacy, he decided to reinvent himself yet again.