Election Case a Test and a Trauma for Justices
February 20, 2001
By LINDA GREENHOUSE
From The New York Times
WASHINGTON, Feb. 19 — The last time the justices of the Supreme Court appeared together in public was at the inauguration of President George W. Bush, their presence on the platform providing the starkest reminder possible of the court's extraordinary role in deciding the outcome of the 2000 election.
In recess since that wintry afternoon, the court as an institution has been all but invisible. But the justices themselves have been busy. Across the court's ideological spectrum, in ways both subtle and direct, they have been reaching out to reassure the public — and perhaps each other — that all is well at the court despite
the bitter words spoken and deep divisions revealed by the 5-to-4 vote in Bush v. Gore.
From Justice Stephen G. Breyer's remark to a law school audience in Lawrence, Kan., that the explanation for the decision "isn't ideology and it isn't politics" to Justice Antonin Scalia's comment to law students in San Diego that "if you can't disagree without hating each other, you better find another profession other than the law," the justices are behaving almost like survivors of a natural disaster who need to talk about what happened in order to regain their footing and move on.
Justice Ruth Bader Ginsburg, speaking at the University of Melbourne Law School in Australia, in no way receded from her view that the decision was seriously misguided. But both for her foreign audience and for the domestic one to which the court's press office distributed her text, she offered a measured and nuanced account of the context in which the election controversy reached the court and of the belief among respected opinion leaders that a national crisis required the court's intervention.
As the justices have made their rounds of law school forums and civic events, their eagerness to discuss the court's current mood has not, unsurprisingly, been matched by a willingness to reveal the internal deliberations over the 20-day period in which the court received, accepted and decided the Bush legal team's two appeals from consecutive rulings of the Florida Supreme Court.
The justices regard the deliberations of "the conference" — the nine meeting alone behind closed doors — as close to sacrosanct. They met privately, without even their law clerks present, three times on the election cases, and details of those conversations remain private. Consequently, any effort to construct a narrative of those 20 days encounters substantial gaps and intriguing unanswered questions.
Nonetheless, it has been possible through reporting at the court and a close rereading of the court's opinions during the period to gain fresh insight into some central moments in the all-consuming event. It was a drama that from the beginning generated more internal conflict than was generally known and that ended with the exhausted justices working into the night, drawing their window blinds against the penetrating glare of the television satellite trucks that ringed the court as the country waited to learn whether the 2000 presidential election was finally over.
In their public remarks, justices from across the divide of the decision have sent a twofold message: first, that the court was engaged in an appropriately judicial act rather than an illegitimately political one (significantly, this message was delivered by the Bush v. Gore dissenters); and second, that despite their sharp disagreement, the justices can still get along and their institutional bond remains strong. Indeed, not three weeks after the Dec. 12 decision, Justice Scalia and his wife, Maureen, joined Justice Ginsburg and her husband, Martin, for a New Year's Eve dinner, a tradition the two ideologically opposite justices have maintained for years.
The imperative of moving on to the next case is a powerful one at the court, and there is little doubt as the court reconvenes Tuesday that the justices' view is on the cases that lie ahead rather than on the trauma they are working to put behind them.
But 10 weeks after Bush v. Gore, the full extent of that trauma, both for the court and for the justices as individuals, is nonetheless coming into some focus.
Throughout the period, events moved so quickly that only in retrospect have some elements become clear; for example, that the opaque unanimous opinion by which the court decided the first appeal was intended as a considerably sharper warning to the Florida Supreme Court than its mild language and
bland tone suggested.
And it is also obvious now that there was a general misreading of the justices' initial decision in the first appeal to discard the Bush legal team's equal-protection challenge to the Florida recount. That claim, based on the argument that a partial recount in only four counties violated the 14th Amendment by weighting some votes more than others, was then still pending in a companion case before a federal appeals court.
The justices' decision to delete the equal-protection issue from the first Bush appeal reflected a conclusion that the question was not yet ripe for review rather than that it was uninteresting or irrelevant.
In fact, during the argument in the second case, two of the justices who eventually dissented, Justice Breyer and Justice David H. Souter, became close allies and tried to build a strategy for rescuing the recount based on the expressed equal-protection concerns of one justice, Anthony M. Kennedy. But Justice Kennedy instead became the co-author of the majority decision that rejected further counting.
Whether Justices Breyer and Souter ever had a realistic chance of turning the outcome around, and how close they might have come, remain unanswered questions. While the Gore lawyers had hoped to sway both Justice Kennedy and Justice Sandra Day O'Connor, two Stanford graduates who often find themselves allies on the more moderate end of the court's dominant conservative wing, it appears that Justice O'Connor did not waver in her position against recounts.
While it is already fading into a single seamless blur, the Supreme Court's involvement in the election proceeded in a series of discrete steps. There were two separate cases. The first, Bush v. Palm Beach County Canvassing Board, was an appeal from the Florida Supreme Court's decision to order a 12-day extension for certifying the results of recounts in four counties. It was argued on Dec. 1 and decided three days later with a unanimous decision that told the Florida court to do a better job of explaining its rationale for the extension.
The second case, Bush v. Gore, was an appeal from the Florida Supreme Court's decision ordering a statewide recount of the "undervotes," ballots that machines had read as indicating no presidential choice.
Argued on Dec. 11, it was decided late the next night by a 5-to-4 decision declaring that the lack of uniform standards for counting the votes made the recount unconstitutional.
The majority said there was no time to send the case back for a better recount because it was already Dec. 12, the date set by federal election law by which electors had to be chosen if their right to cast their state's electoral votes was to be immune from challenge. With the dissenters arguing vainly that the only deadline that mattered was the Dec. 18 date for casting electoral votes, and with Vice President Al Gore trailing by a few hundred votes, the contest for Florida's decisive 25 electoral votes was over.
Based on the best available information, and in some instances on a new reading of the court's published opinions in light of that information, what follows is a chronological account of how the Supreme Court came to decide the presidential election.
Opening the Floodgate
When the court announced on the day after Thanksgiving that it would hear the first Bush appeal, surprising nearly all who had assumed the justices would do their best to stay away from a politically charged case that appeared completely grounded in state law, there was considerable speculation about what lay behind the decision. The announcement was unsigned and gave no indication of the vote. The votes of four justices are required to accept a case. There was no way to tell whether the court was divided on the wisdom of granting the case or whether perhaps the court as a whole, sensing that the problem in Florida might be spinning out of control, had concluded that it was prudent to intervene sooner rather than later.
It is now known that the court was sharply split. The move to hear the case, driven by the justices who eventually ruled in Mr. Bush's favor, foreshadowed and helped shape the later division on the court, a division that the intervening unanimous decision papered over even more thinly than it appeared to at the time.
While the Bush team did not bring the case to the court until Nov. 22, the justices were hardly oblivious to what was taking place in Florida. The state-court struggle over the partial recount and its timetable had already spilled over into federal court, where the Bush lawyers had raised objections based on the constitutional guarantees of equal protection and due process. That drew the justices' attention by positioning the dispute as one of constitutional dimension, and therefore potentially within the Supreme Court's jurisdiction, as opposed to a state-law question of the procedures for conducting a recount, an issue that would remain the province of the Florida court system.
As the federal case moved quickly up the judicial ladder, one justice who watched with particular interest was Justice Kennedy. As circuit justice for the United States Court of Appeals for the 11th Circuit, he has administrative responsibility for emergency cases reaching the court from federal and state courts in Georgia, Alabama and Florida.
Named to the court by President Ronald Reagan in 1987 to fill a seat left open by the failure of Robert H. Bork's nomination, Justice Kennedy occupies a central and somewhat ambiguous position on the court. Despite Justice Kennedy's strong opposition to policies that take race into account in redistricting or public contracting, his votes to reaffirm the right to abortion and to strike down an anti-gay provision of the Colorado Constitution have nonetheless made him an object of suspicion among conservatives.
In the court's previous term, Justice Kennedy had written the majority opinion in a Hawaii case that raised equal-protection concerns about a special-election system there. The equal-protection argument in the Bush team's federal case caught Justice Kennedy's attention.
As it happened, appeals in both the federal and state cases reached the court simultaneously on Thanksgiving eve. But the federal case was procedurally unattractive because the appeals court had not yet ruled. The Bush lawyers were asking the justices to skip over the appeals court and address the refusal of a federal district judge in Miami, Donald M. Middlebrooks, to stop the recount. Although the Supreme Court has the authority to intervene at this stage, it rarely does.
The state case, by contrast, was ripe for review. The Florida Supreme Court had issued a definitive ruling the day before to extend the certification deadline by 12 days so that the recounts sought by the Gore team in four counties could be completed. That unanimous decision by a state court the justices knew well for its liberal leanings struck some justices as a partisan effort to manipulate the rules in order to bring about a Gore victory.
The justices who became the dissenters in Bush v. Gore assumed the court would stay away from the Florida election. They were startled to learn from a memorandum that circulated shortly before the justices met on the day after Thanksgiving to discuss the appeals that the votes were there to take the state court case. The eventual dissenters' objections were unavailing, and the discussion turned to which issues the court was prepared to consider.
The appeal from the state court decision also included an equal-protection claim, although as something of an afterthought compared with the central role for equal protection in the federal case.
The main questions in the appeal were, first, the meaning and enforceability of a federal law offering a state's electors a "safe harbor" from later challenge if they are chosen by procedures in effect before Election Day; and second, whether the state court's decision extending the vote-counting deadline had unconstitutionally supplanted the role of the Legislature.
Despite their interest in the equal-protection issue, the justices decided to excise it in order to allow the federal appeals court to consider it in the more fully developed context of the federal case. The federal appeal, in turn, was denied "without prejudice," a signal that the disposition was essentially procedural and an invitation to the Bush lawyers to present the question again later.
In retrospect, it is tempting to conclude that the initial fateful decision to hear the first case made the eventual outcome all but inevitable, that a narrow majority had set the court on a path from which there was no other logical exit unless the Florida Supreme Court itself backed down. That view is held in some quarters at the court, but it is not the only view; like much about the election cases, even in the simplest narrative form, perspectives differ and considerable ambiguity remains.
A Winner With a Grievance
In any event, even as the court braced itself for the Dec. 1 argument in the first case, the picture on the ground in Florida was changing rapidly. The extended recount period ended on Nov. 26 with Mr. Bush still ahead.
The Florida secretary of state, Katherine Harris, declared him the winner, leaving him in an odd position as a Supreme Court appellant. As a practical matter, Mr. Bush could claim no injury from the decision he was appealing. Under Florida election law, the "protest" phase for challenging the vote count was now over. One question obviously on the justices' minds during the first argument was whether the case still mattered.
The argument itself did not dispel the doubts about the appeal's continued relevance, a fact that may have made it easier for the court to reach a compromise in the form of the unsigned six-page opinion issued midmorning on Monday, Dec. 4. The ruling vacated the Florida Supreme Court's Nov. 21 decision and instructed the state court to demonstrate it had taken proper account of certain statutory and constitutional provisions governing federal elections.
Decoding a 9-to-0 Ruling
Opacity may have been the price of unanimity; in retrospect, it is clear there was a rather strong message contained within the cryptic opinion and that the court's queries to the Florida justices reflected more than an abstract interest in the outcome. But the pace of events in Florida was such that some justices who retained strong doubts about whether the court should be in the case at all could at least take cold comfort from the growing assumption that the election would be over before the case could come back to haunt the Supreme Court again.
That assumption appeared to be validated when, within hours, Judge N. Sanders Sauls of the state circuit court in Tallahassee issued a sweeping rejection of Mr. Gore's challenge to Mr. Bush's certified victory. But late in the week, the Florida Supreme Court weighed in again, not only reversing Judge Sauls but also ordering a statewide recount of the undervotes to begin the next day.
The breadth of that decision was startling, and even some justices who eventually ruled that the recount should go forward were momentarily taken aback. To the eventual majority, the decision was not only startling, but wrong. As Justice O'Connor was to indicate by her questions from the bench, it appeared that the state court had willfully ignored a clear warning to reverse course. She is a tough and active questioner, a stickler for procedure who does not hide her displeasure when she suspects a lawyer, or a lower court, of cutting corners. A former majority leader of the Arizona State Senate, Justice O'Connor, a Republican, is the only current justice to have held elective office.
Within hours of the state court's ruling on Friday, Dec. 8, the Bush team had filed both an appeal and a request for a stay of the imminent recount. The endgame had begun, and tightly packed into the next four days would come moments of high drama and emotion.
The eventual dissenters expected the court to hear the appeal swiftly, but the decision to stop the recount in the meantime came as a shock. The tension and anger that the court had managed to contain under a veneer of civility erupted for all to see. There were now, openly, two sides, and the vote was 5
to 4.
The pace of events, already scarcely believable by the Supreme Court's stately standards, was to become amazingly compressed: state court decision Friday afternoon; Supreme Court appeal filed Friday night; case accepted Saturday; briefs due Sunday; argument Monday; decision Tuesday. No one had seen anything like it. By the time three New York University Law School professors arrived at the court on Tuesday morning to interview law clerks for teaching positions, complete exhaustion had set in, and some clerks who had not canceled their long-scheduled appointments slept through them.
The justices met early on Saturday to consider the stay application and the appeal. The recount had just begun in Florida, but it was soon clear that the majority at the court had the votes to stop it. Chief Justice William H. Rehnquist, along with Justices Scalia, Kennedy, O'Connor, and Clarence Thomas, all voted to grant the stay.
On the other side was Justice John Paul Stevens, the senior associate justice and, at 80, the oldest member of the court. A Republican, named to the court by President Gerald Ford, he had become in many respects the most liberal justice and, on his side of the court, the most outspoken. Justices
Souter, Breyer and Ginsburg voted with him.
Like Justice Stevens, Justice Souter, a former attorney general and state supreme court justice from New Hampshire, was a lifelong Republican who found that his party's center of gravity had shifted uncomfortably to his right. Justices Ginsburg and Breyer, President Bill Clinton's two appointments, were judicial moderates, both former law professors and federal appeals court judges whose instincts were to search for compromise rather than confrontation.
But there was to be no compromise at this point. Justice Stevens wrote a sharp three-paragraph dissent from the stay. The majority had "acted unwisely" to "stop the counting of legal votes," Justice Stevens said. The other three signed the dissent.
While a published dissent from an order like a stay is unusual, this one had the effect of goading Justice Scalia into doing something even more unusual, publishing a defense of the stay.
The recount had to be stopped because it threatened "irreparable harm" to Mr. Bush, Justice Scalia said, "by casting a cloud on what he claims to be the legitimacy of his election."
No one on Justice Scalia's side signed his opinion; some questioned the wisdom of publishing it and further revealing the court's internal conflict. If any one justice was to have made such a public statement, Justice Scalia, who relishes intellectual combat and has never been known to pull punches,
was certainly the most likely candidate.
The absence of other signatures on the Scalia opinion made him appear to be the driving force behind the court's action, but that was not the case. Although his role was less visible, Chief Justice Rehnquist took an active part from the beginning in shaping the court's response to the events in Florida.
Approaching his 29th anniversary on the court, with nearly 15 years as chief justice, he runs the court with a firm hand and views stepping up to the big cases as part of his institutional responsibility. But in the end, he tried and ultimately failed to speak for the court in this case.
Following the vote on the stay, the dissenters were shaken and demoralized, fearful that the court, having so narrowly dodged a bullet by managing to turn out a unanimous opinion the previous weekend, was about to do itself great harm. The court is not a place where people casually drop in to one another's offices to chat, but the dissenters reached out to one another for moral support. A consolation was that Justice Scalia had taken the bait of the Stevens dissent, perhaps giving the public a warning of what now seemed an inevitable outcome.
A Rationale for Mistrust
With the case set for argument, each side faced a challenge. For the dissenters, the question was whether there was any strategy by which they could split the majority and get the recount going again. For the majority, the deep mistrust they shared of the Florida Supreme Court's motives was not matched by an agreed-upon view of where exactly, as a legal matter, the state court had gone wrong. The majority had a conclusion in search of a rationale.
The equal-protection issue was before the court again, but it had evolved into something new. The question was no longer whether it was constitutional to recount votes in some counties and not others, but whether it was constitutional to count votes by standards that differed from county to county. This evolution gave Justice Breyer something to work with. If a lack of uniform standards was the problem, the solution was obvious: establish a standard, or instruct the Florida court to set one, and start counting.
During the argument on Monday morning, it was evident that Justice Breyer, joined by Justice Souter, was offering this option in an effort to sway Justice Kennedy and perhaps Justice O'Connor. Both had expressed some uncertainty about the other legal theories behind the Bush appeal. But they gave no indication during the argument of being receptive to Justice Breyer's approach. The question was whether the Florida Supreme Court could be trusted to supervise a recount under any circumstances.
It appears that for Justice O'Connor, the answer was decidedly no. Justice Kennedy came more slowly and ambivalently to the same conclusion. There would be no more counting.
Even if Justice Kennedy had been open to Justice Breyer's persuasion, it is not clear what would have happened next. Justices Ginsburg and Stevens did not agree that the recount as ordered by the Florida court posed a problem of constitutional dimension. For them, therefore, there was no need for a remand or for new standards. Whether to join a compromise that took such a need as its starting premise was a decision they ultimately did not have to confront because the compromise did not gel.
'Loser Is Perfectly Clear'
Although the outcome was clear by Monday night, the justices' work was not done. Justice Stevens drafted a dissenting opinion whose bitter words became the most widely quoted language from any of the opinions.
The majority's position "can only lend credence to the most cynical appraisal of the work of judges throughout the land," he wrote, adding: "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."
Justice Stevens left Washington for his second home, in South Florida, as he had long planned for the year-end recess that was supposed to be under way.
Justices Breyer and Ginsburg signed the Stevens dissent while each offering an individual view as well. (While Justice Ginsburg's opinion drew considerable notice for its omission of the adverb "respectfully"
from the closing "I dissent," that was a choice, it was pointed out, that she frequently made for economy of style rather than to convey a particular level of anger.)
Justice Souter did not sign. He wrote his own dissent and also signed the major portion of the Ginsburg and Breyer dissents. While Justice Souter's writing style can be convoluted, in this instance it was so direct as to be almost conversational, his anger controlled but his extreme disappointment evident. "I write separately only to say how straightforward the issues before us really are," he said.
Photographs taken later of the justices as they drove out of the building's underground garage showed Justices Scalia and Breyer looking grim but determined, while Justice Souter looked hollow-eyed and ashen.
Throughout the building, justices worked into the night. The Supreme Court building is constructed around four interior courtyards, with the chambers arrayed around the outer perimeter, facing the street. The bright lights from the television networks' satellite trucks, mounted on high poles, shone into the justices' windows. Some found the harsh light unnerving, while to others, the public spotlight seemed somehow appropriate, given the gravity of the public's business being conducted inside. Supreme Court police officers made their rounds, advising justices and law clerks to draw the blinds in case someone tried to take pictures through the windows.
Majority but Not a Monolith
On the majority side, Chief Justice Rehnquist circulated an opinion that had the support of Justices Scalia and Thomas. It said that in ordering the recount, the Florida Supreme Court had unconstitutionally displaced a role reserved for the state legislature and had ignored the Florida Legislature's desire to give the state's electors the benefit of the "safe harbor" against later challenge on the floor of Congress that federal law offered to slates of electors chosen by Dec. 12.
(While 20 states failed to meet the Dec. 12 deadline for submitting slates of electors without any jeopardizing their votes in the Electoral College, the outcome of the election in those states was not disputed. In Florida, by contrast, Republican legislative leaders had announced plans for a special session to choose the Legislature's own slate of Bush electors.)
But although intended as a majority opinion, the chief justice's opinion failed to get the support of Justices Kennedy and O'Connor. They drafted their own opinion, concluding that the standardless recount violated the guarantee of equal protection.
Their opinion later caused some confusion by its reference to "seven justices of the court" who "agree that there are constitutional problems with the recount." That was true, but it was also beside the point, because by then the only question was whether there was a remedy for those problems, in the form of a restructured but continuing recount.
On that question, the vote remained 5 to 4.
A Singular Case
It is not clear from the face of the Kennedy-O'Connor opinion, labeled only "per curiam," or "by the court," what disagreement they had with the Rehnquist opinion. In the first argument, Justice Kennedy had questioned whether the safe-harbor provision was legally enforceable.
For Justice O'Connor, the broadly worded Rehnquist opinion may have violated her rule that the court should decide cases on the most narrow ground possible. The holding of the per curiam was as narrow
as possible, "limited to the present circumstances," it said.
In order to permit the majority to speak with one voice, the chief justice and his two allies joined the Kennedy-O'Connor opinion. In language that was perhaps the result of negotiations between the majority's two factions, the opinion contained an unusual declaration that the principle it established
was in effect a ticket for this train only.
"Our consideration is limited to the present circumstances," the opinion said, adding with considerable understatement, "for the problem of equal protection in election processes generally presents many complexities."
The outcome was clearly one of convenience rather than the opening shot in a Rehnquist court equal-protection revolution. In fact, the most telling measure of whether the court has really put the election trauma behind it may be whether any dissenter is sly or mischievous enough to cite Bush v.
Gore to bolster an equal-protection argument in a future case.
Copyright 2001 The New York Times Company
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