The Nine (30 page)

Kennedy responded by adding what became the most notorious sentence in the opinion—indeed, a single sentence that summed up so much of what was wrong with what the Court did. “Our consideration is limited to the present circumstances,” Kennedy wrote, “for the problem of equal protection in election processes generally presents many complexities.”

In other words, the opinion did not reflect any general legal principles; rather the Court was acting only to assist a single individual—George W. Bush. That was not what Kennedy meant, but that was what he wrote. The sentiment amounted to a natural consequence of the Court’s misbegotten encounter with the 2000 election. The business of the Supreme Court is to take cases that establish principles of general application. But as Kennedy’s sentence all but conceded, there was no general principle in
Bush v. Gore
—only a specific designation of the winner of one election. More than any other, this sentence invited skepticism about the majority’s true motives in the case.

By midafternoon on Tuesday, as the four justices in the minority circulated their dissenting opinions, tempers grew even shorter. Ginsburg had devoted her professional career to the use of the Equal Protection Clause of the Fourteenth Amendment, and it galled her to see that provision perverted by Kennedy’s opinion. In a late draft of her dissent, Ginsburg drew on certain early press reports about the black vote in Florida to suggest in a footnote that, if there was any equal protection violation by the state, it was more likely by state and local authorities than by the Florida Supreme Court. The footnote sent Scalia into a rage, and he replied with a memo—in a sealed envelope, to be opened only by Ginsburg herself—accusing her of “fouling our nest” and using “Al Sharpton tactics.” Ginsburg backed down and removed the footnote.

Still, the cumulative effects of the dissents worried Kennedy and O’Connor. They needed to show that their views were not as outlandish as the dissenters made them seem. So they decided to seize on the fact that Souter’s and Breyer’s opinions (which Stevens and Ginsburg joined in substantial part) said the case should be remanded to the Florida Supreme Court for the setting of a standard. Kennedy wrote, “Eight Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. The only disagreement is as to the remedy.” The statement was borderline disingenuous. In truth, the main point of Stevens’s, Souter’s, and Breyer’s opinions was that the recounts should continue, not that they had “problems.”

Stevens was already in Florida, but his clerks screamed at Kennedy’s clerk that the sentence distorted Stevens’s opinion. (In the confusion of the moment, they actually yelled at the wrong clerk, not the one who had responsibility for
Bush v. Gore
.) In response to the tirade from the Stevens chambers, Kennedy changed the reference to “Seven Justices.” Souter and Breyer would have been within their rights to protest as well, but they decided not to bother. That was a mistake. As a result of this sentence, as Kennedy intended,
Bush v. Gore
is often referred to by its supporters as a 7–2 case. In truth, it was never anything but 5–4.

The crisis of
Bush v. Gore
came upon the Court so quickly that the normal flow of business continued unabated, sometimes with comic results. At about nine in the evening on Tuesday, as the last of the opinions were being proofread before being sent to the printer in the basement, a court of appeals law clerk named Anil Kalhan showed up in advance of an interview with O’Connor that was scheduled for the next day. Kalhan thought he would visit friends who were already clerking. But his arrival outraged several other law clerks, who thought that an outsider like Kalhan could not be trusted to keep the result in
Bush v. Gore
secret. Some suggested, in apparent seriousness, that Kalhan be “detained,” so he could neither leave nor call outside the building. In any event, no one told Kalhan the result, and he drifted into one of the conference rooms where televisions had been set up to watch the media reports on the announcement. He was not detained, and neither did he get the clerkship.

Over the course of the day, the usual crew of about a dozen regulars in the Supreme Court pressroom had been joined by about fifty other reporters. At 9:40 p.m., Ed Turner, the Court’s deputy public information officer, entered the room and announced, “We’re going to make a line.” He read out the names of the permanent members of the Supreme Court press corps, and they dutifully queued up in the marble hallway. The newcomers stacked up behind them. At 9:52, the large cardboard boxes of opinions appeared, and the line moved at the nervous, half-running pace of paratroopers jumping out of a plane. Members of the public information staff had arranged for reporters to make a quick exit to the street through the door of the Supreme Court gift shop. The television reporters sprinted across the plaza to their camera positions on the First Street sidewalk.

Flipping madly through the pages, the correspondents struggled to make sense of the ruling. Because of the rush, the clerk’s office did not prepare a summary, which is customary at the beginning of all Supreme Court opinions. The journalists’ confusion was understandable, as the Court’s chaotic process was reflected in its finished product. Its opinion, largely written by Kennedy, was again labeled per curiam, “by the court,” which was the designation the justices usually used for uncontroversial rulings. Rehnquist insisted on its use here because the final opinion of the Court had been jointly assembled and the phrase would give a pretense of unanimity to the Court’s action. The end of the per curiam stated that the case was “remanded for further proceedings not inconsistent with this opinion.” That was a familiar phrase in the Court’s jurisprudence, but its meaning was, at first, unclear in the context of
Bush v. Gore
. Did it mean the recounts could continue? Foggy thinking by the Court had produced muddy writing, but closer parsing eventually showed that the answer was no.

Inside the Court, televisions had been set up in a pair of nearby conference rooms for the law clerks. The liberals migrated to one gathering, the conservatives to the other. Not surprisingly, the two rooms split close to evenly, like the rest of the country on this night. The liberals had Thai food and beer; the conservatives pizza and Scotch. They were unanimous only in their hooting derision for the television reporters. None of the justices came to watch; instead they made their way to their cars and drove home.

It had been at least twenty-five years since the nation turned its collective attention to the Supreme Court to resolve a question of such importance. In 1974, the justices had risen to the occasion when, in
United States v. Nixon
, they unanimously ordered the president to turn over the White House tapes and, in a larger sense, comply with the rule of law. Here, in a moment of probably even greater significance, the Court as an institution and the justices as individuals failed. Indeed, their performance on this case amounted to a catalog of their worst flaws as judges.

In one respect, though, the Court received unfair criticism for
Bush v. Gore
—from those who said the justices in the majority “stole the election” for Bush. Rather, what the Court did was remove any uncertainty about the outcome. It is possible that if the Court had ruled fairly—or, better yet, not taken the case at all—Gore would have won the election. A recount might have led to a Gore victory in Florida. It is also entirely possible that, had the Court acted properly and left the resolution of the election to the Florida courts, Bush would have won anyway. The recount of the 60,000 undervotes might have resulted in Bush’s preserving or expanding his lead. The Florida legislature, which was controlled by Republicans, might have stepped in and awarded the state’s electoral votes to Bush. And if the dispute had wound up in the House of Representatives, which has the constitutional duty to resolve controversies involving the Electoral College, Bush might have won there, too. The tragedy of the Court’s performance in the election of 2000 was not that it led to Bush’s victory but the inept and unsavory manner with which the justices exercised their power.

There was only one bright spot in this dismal panorama. John Paul Stevens’s dignified, clearheaded, and insistent eloquence honored the Court. Alone among the justices, Stevens was consistent and logical and constitutionally sound in his thinking. From his home in Fort Lauderdale, he composed a peroration that serves as the best epitaph for this sorry chapter in the Court’s history: “The [per curiam opinion] by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. 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 pellucidly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” (At the last moment, one of Stevens’s clerks prevailed on him, just this once, to give up his favorite word—
pellucidly
—and substitute the more familiar
perfectly
, which is how the famous sentence now reads.)

With one exception, the justices tried to put
Bush v. Gore
behind them and resume business as usual. Three weeks later, Scalia and Ginsburg followed their custom of welcoming the New Year with each other’s families. Breyer, characteristically, made a systematic effort to take many of the disappointed liberal law clerks to lunch. In restaurants, often at embarrassingly high decibels, Breyer urged the young lawyers to maintain their faith in the Court and believe that their views might someday return to favor. O’Connor tried to avoid discussing the case. Kennedy pretended the whole matter was no big deal.

David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal. Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed
Bush v. Gore
mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of
Bush v. Gore
and wept.

PART

THREE

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