Here's your 7-2 majority (READ: 5-4) in action:
FROM USA TODAY
WASHINGTON -- Six weeks after an uneasy U.S. Supreme Court cleared the way for Republican George W. Bush to become president, the scars left on the nation's highest court by the Florida election case are evident.
The court's nine justices, uncomfortable with their role in such a high-stakes political contest, have remained tense with one another since the 5-4 ruling that shattered many Americans' image of the court as an institution above the partisan politicking that goes on across the street in Congress.
The court has been slow to get back into its routine caseload, and justices have been meeting with each other and their staffs to try to ease any lingering bitterness and to boost morale. The justices' clerks, the ambitious worker bees behind the court's white marble edifice, nevertheless are nursing grudges.
Meanwhile, the court has been bombarded with thousands of letters from angry Americans, some of whom have sent in their voter registration cards suggesting that going to the polls in November was a waste of time. ''For shame!'' one letter said. Many messages to the justices have been sarcastic, others more menacing -- including one with an illustration of a skull and crossbones.
More significantly, there are signs that the fallout from Bush vs. Gore has become a factor in at least one justice's yearnings for retirement. Sandra Day O'Connor has told people close to her that in her two decades on the court, she has never seen such anger over a case. O'Connor, more than any justice, has seemed disturbed by the public wrath directed at the court.
People who know the 70-year-old justice's personality and politics say they believe that the election fallout -- and a desire to spend more time with her husband, John O'Connor, as he faces health problems -- could lead the nation's first woman justice to retire as soon as this summer, when the 2000-2001 term ends. John O'Connor, 71, a lawyer, had a heart pacemaker implanted in 1999 and has had more health problems since, say people close to the couple.
Justice O'Connor refuses to comment on such speculation and has gone about hiring staff for next year. If she were to leave the Supreme Court, it would give President Bush a chance to have an immediate impact on the court. Bush says he wants judges who will conservatively interpret the Constitution, and he has held up Justices Antonin Scalia and Clarence Thomas as models.
Others in the new administration invoke a ''no more David Souters'' mantra. This refers to the justice appointed by Bush's father in 1990. Souter is far more moderate than conservatives expected and regularly votes with the court's liberal wing.
O'Connor often casts the deciding vote and, as a swing justice, crafts the court's rationale on some of the most hotly debated issues, including abortion rights, affirmative action and the line between federal and state power. In the Florida case, she sided with the court's conservatives in supporting Bush's argument and blocking Democrat Al Gore's push for further ballot recounts. People close to the justices say the decision was particularly uncomfortable for O'Connor because she, along with Chief Justice William Rehnquist, 76, stood as potential beneficiaries of a Bush election victory. Both have considered retirement, and it's accepted among court analysts that the two justices, both Republicans, would prefer that a GOP president name their successors.
Rehnquist's distaste for the scenario that put the election in his court's hands was apparent during an address Jan. 1, when he departed from protocol by mentioning a specific case that had come before the court -- the Florida recount dispute. He said he hopes such a case never again lands at the court.
''This presidential election tested our constitutional system in ways it had never been tested before,'' said Rehnquist, who joined O'Connor in the majority. He said he hopes such involvement ''will seldom, if ever, be necessary in the future.''
The Florida case cast an unwanted spotlight on a court unaccustomed to significant public attention, much less harsh criticism. It is an insular place of strict decorum and deliberate mystery. Justices rarely agree to be quoted. Their clerks are pledged to secrecy.
However, an examination of the court's activities and interviews with more than two dozen people close to the justices reveal new details about the fallout from the Florida ruling, and about the court's struggle during the second week of December to reach a decision as an anxious nation waited.
The roots of discord
On Dec. 12, a flurry of holiday cheer in the building masked the wrenching negotiations behind the scenes over the Florida case. As a team of workers put colored lights on the court's 22-foot Christmas tree in the Great Hall, the nine justices were in their chambers wrangling over the law.
At the start, it didn't seem so hard. In the early deliberations, the five conservative justices who on Dec. 9 had halted the recounts ordered by the Florida Supreme Court -- O'Connor, Rehnquist, Scalia, Thomas and Anthony Kennedy -- seemed to be on the same page. In fact, Rehnquist initially believed a decision would come Dec. 11, the day the court heard oral arguments in the historic case. The chief kept the courthouse staff on duty late that day.
But shortly after the staff ordered Chinese carryout, it was told to go home. One factor that complicated things was a decision by the Florida Supreme Court that evening in which the state court clarified its grounds for intervening in the ballot controversy. That made it more difficult for the justices to assert that the state panel had improperly set new rules of state law.
The five conservative justices fractured into two camps: Rehnquist, Scalia and Thomas, who continued to say that the Florida court had acted illegally and infringed on legislative power; and O'Connor and Kennedy, who agreed that any recounts would be improper but for a different reason -- the different standards that Florida counties had been using for recounts. They believed this could violate the Constitution's guarantee of equal protection under the law.
Meanwhile, those two justices were being pressured by two of the court's four liberals, Souter and Stephen Breyer, to adopt a compromise that would acknowledge the lack of standards for recounts but permit a review of the disputed ballots to continue under new rules.
Kennedy, who was especially worried about the various county standards for determining voter intent, took on the responsibility for writing much of what became the court's unsigned decision. But he was still torn about what to do. Kennedy has a slow, deliberate style, and people close to the court say that at times he simply froze.
In the Florida case, crafting a constitutional principle that spoke for any majority would have been difficult for the swiftest writer. What finally was released the night of Dec. 12, two hours before a midnight deadline that would have raised the possibility of congressional intervention, was a thin mix of precedent and legal reasoning. The court's decision stopping the recounts was a novel interpretation of the Constitution's guarantee of equal protection that included a declaration that the ruling shouldn't affect other cases.
Supporting the opinion were Rehnquist, O'Connor, Kennedy, Scalia and Thomas -- all ideological, if not political, conservatives. The liberals -- Souter, Breyer, John Paul Stevens and Ruth Bader Ginsburg -- dissented. [P.S. - THAT'S 5-4, MORON]
Souter and Breyer, who shared concerns about a statewide standard, had fought hard for a compromise. They wanted to avoid a ruling that would seem little more than a political calculation. More important, they believed that Florida's disputed ballots had to be tallied to make the election results credible.
They tried to identify with the concerns of O'Connor and Kennedy. As time ran out, however, O'Connor and Kennedy said there was no practical way to swiftly set new standards. Rebuffed, Breyer and Souter left the courthouse in frustration.
The two other dissenters were no less unhappy. Stevens said the decision wounded the nation and would undercut its respect for judges. In a dissenting statement, Ginsburg dropped the customary ''respectfully'' from her closing words and said only, ''I dissent.''
Repairing the damage
There is a philosophy among the justices that rehashing a case or holding a grudge is useless and counterproductive. As lifetime appointees, they cannot avoid each other's company. The justices are known for saying that they decide a case and move on, and in fact Thomas said shortly after the Florida ruling that the court was doing just that. However, this case, which exposed the court to public outrage it hadn't faced in decades, wasn't easily filed away.
Though many Americans supported the ruling and wanted the recount debacle over, ''a lot of the public is looking at this as a bad call in the seventh game of the World Series,'' Stanford University law professor George Fisher says. ''It's not surprising to have unusual tensions over this case.''
When the justices returned to the bench this month for the first round of oral arguments since the ruling, they seemed both wearier and testier. O'Connor, who often snaps at the lawyers who come before the court, at times has been visibly impatient with her fellow justices. In one citizenship case, she implied that her colleagues' questions were inconsequential and, in a voice dripping with annoyance, told the lawyer at the lectern, ''I'm concerned that your time will expire before you've addressed either point that may be critical here.''
The justices have been slower to resolve cases that are pending from oral arguments in the fall. So far this term, the court has issued only about half the number of major rulings it usually puts out by the four-week winter recess, which begins after a brief session today.
This will be the first time in at least a decade that on the last court day before the recess, the justices have no decisions ready to hand down.
Meanwhile, signs abound that some justices are trying to help the healing process.
O'Connor and Breyer have lunched in private, and individual justices have met with their young clerks to try to keep them from becoming disillusioned by the fallout. People close to the court say that some clerks for the liberal justices are dismayed at the court's role in the case, while clerks for conservative justices believe the ruling was one of integrity and are angered by nationwide criticism of the court.
That criticism began close to home with the resignations of a few members of the Supreme Court bar, the group whose members are eligible to argue before the justices. Although such a move is largely symbolic because most of the tens of thousands of lawyers qualified to practice before the court never actually get the opportunity, court officials cannot recall lawyers ever protesting a ruling in such a way.
Beyond Washington, the court's ruling has been skewered by some legal analysts. A refrain that has become popular among dissatisfied law professors is, ''What will I tell my students?'' Yale University law professor Akhil Amar answered that in an opinion piece in the Los Angeles Times: ''It will be my painful duty to say, 'Put not your trust in judges.' ''
Michael Greve of the American Enterprise Institute wrote in the conservative The Weekly Standard, ''It would be silly to deny that partisan considerations influenced . . . the justices' rulings.''
Court observers say that though certain justices have been barraged by mail after controversial rulings -- Harry Blackmun began receiving hate letters in 1973 after writing the opinion in Roe vs. Wade that established abortion rights -- it is rare that the entire court is swamped with letters. In the days after the Florida ruling, thousands of letters poured into the court. Many voters who wrote accused the justices in the majority, all GOP appointees, of playing politics.
''I called them clowns in robes,'' says Grandison Bartlett, 74, a retired business manager in Forked River, N.J. ''I figured it was payback time for Republicans.''
But court insiders say the reactions that have most shaken the justices have come from Americans who have questioned the justices' personal motives. One widely circulated tale involving O'Connor has it that at an election night party Nov. 7, O'Connor became visibly upset when network anchors first said Gore had won the critical state of Florida. Her husband told others at the party that his wife was concerned because the couple wanted to retire and that she preferred a GOP president name her successor.
People close to the justices confirmed much of the story, which was first reported in The Wall Street Journal and Newsweek magazine. However, some people suggest that O'Connor was actually upset that the election was being called for Gore while West Coast polls were still open.
''She is more central to the court than anyone,'' says Dennis Hutchinson, a law professor a the University of Chicago. ''She is the one who has defined the standard for abortion rights, for affirmative action. If she were to step down, it would be the most important appointment (to the court) in nearly 15 years.'' |
