The Nine (26 page)

The question, then, was whether the U.S. Supreme Court would agree to get involved, and the Bush campaign had a noted authority at close range. About two days before the argument in the Florida Supreme Court, John G. Roberts Jr. came to Tallahassee. Though he was only forty-five at the time, Roberts was already among the top advocates of his generation before the justices. (Eight years earlier, George H. W. Bush had tapped Roberts for a seat on the D.C. Circuit, but Democrats in the Senate stalled the nomination into oblivion.) In Tallahassee, Roberts helped Michael Carvin prepare for his (unsuccessful) representation of Bush before the Florida justices and then advised Baker on how to get the U.S. Supreme Court to take the case. The conventional wisdom was that the justices would want no part of the controversy. But Roberts’s gut told him otherwise. They’ll take the case, Roberts vowed to Baker, and you’ll win it there, too.

It had been two weeks and a day since the election, and until this moment the controversy in Florida still seemed remote from the work of the Court. As Judge Middlebrooks had said, the management of elections is traditionally governed by state law, which is in turn interpreted by state courts. The U.S. Supreme Court had no authority to tell the Florida Supreme Court how to interpret Florida statutes. Not once in the history of their Court had the justices in Washington imposed themselves in the middle of vote counting in one of the states. Why would they do it now?

Roberts had to return to Washington to argue a different case before the Supreme Court, but following his advice, the Bush team filed its petition for certiorari on Wednesday, November 22, the day before Thanksgiving. The Republicans essentially gave the justices a menu of choices. The Republicans claimed that the Florida court violated federal laws on the conduct of elections; that it violated Article II of the Constitution, which suggests that state legislatures, not state courts, make the rules for presidential elections; that the recount process violated the Equal Protection and Due Process Clauses of the Constitution.

The secret to Olson’s brief was more in tone than in substance. He played on the justices’ collective vanity (not just Kennedy’s), saying in essence that they were the only grown-ups in the room. All the others—especially the justices of the Florida court—were just a bunch of partisan hacks. Olson claimed that the Florida court opened the door to “an electoral catastrophe” and that the Supreme Court of the United States had to step in to prevent “the ascension of a president of questionable legitimacy, or a constitutional crisis.”

Of course, there were very good arguments in response to Olson’s claims. Elections had always been run by states, not the federal courts, and Florida was merely doing what states had done for generations. They were following their own law on recounts. Counting votes had never before been seen as a violation of the U.S. Constitution. Moreover, as a practical matter, the situation in Florida was changing day to day; by the time the justices in Washington heard arguments in this case, the facts on the ground in Florida might be very different—which was why the Supreme Court rarely took a case until it was concluded in all respects. But such arguments never reached the justices, because the Republicans asked for expedited consideration of their case. They wanted the Court to rule on their cert petition before the Democrats even had a chance to defend the ruling of the Florida Supreme Court.

Many litigants before the Supreme Court ask for speedy treatment, but the Court almost never grants it. Particularly during the later Rehnquist years, when the chief put such a premium on efficiency, the Court rarely deviated from its customary schedule. The rhythm of its deliberations on cases seldom varied. The justices rarely even saw a case before all the briefs were submitted by both sides, and then they generally took weeks, if not months, to resolve it.

But in the matter of the election in 2000, the justices departed from their usual rules. There was no order, no regularity, no procedure. The justices decided them on the fly. When an old friend called Stevens to ask for a ticket to the argument of the case, the senior justice answered dryly that he would have to follow the usual procedure on seating. “And I think that’s the only procedure that’s going to be followed around here,” he added.

Most of the justices were not even in the Court building on Wednesday, November 22, so their clerks and the Court staff had to track them down to give them the Republicans’ briefs. Many of the law clerks had already left for the Thanksgiving holiday, so the decision on Bush’s cert petition went to the justices alone. And they did not wait to hear from the Democrats to issue their decision.

As the justice for the Eleventh Circuit, Kennedy coordinated the rulings, which came in on Thanksgiving Day, November 23, and the following morning, Friday, November 24. The votes were:

Rehnquist—grant

Stevens—deny

O’Connor—grant

Scalia—grant

Kennedy—grant

Souter—deny

Thomas—grant

Ginsburg—deny

Breyer—deny

Since only four votes were needed to grant a petition, the Republicans had one more vote than necessary. The Supreme Court would take the case.

Around midday on Friday, Kennedy summoned one of the lawyers who worked in the clerk’s office. These attorneys were career professionals (not to be confused with the individual justices’ law clerks, who served for only a year) and tended to be especially wise about the ways of the Court and skillful in predicting what the justices would do. The lawyer Kennedy called was so sure that Kennedy would simply say the Court had denied certiorari that he didn’t even bring a pen and paper to the justice’s chambers. He could remember a single word: deny.

But Kennedy’s first words to the lawyer were, “I hope you brought a pad.”

The Court had done more than simply grant the writ of certiorari and the petition for expedited consideration. The justices also accepted two of the three “questions presented” in the Republicans’ cert petition. They were willing to hear the Bush team’s arguments on whether Florida had violated federal law or Article II of the Constitution. But they did not think the argument that Florida had violated equal protection merited further consideration.

More important, though, as Kennedy dictated the Court’s order, which was largely his own work, the five justices in favor of cert had agreed on a schedule that was even faster than the one the Republicans had proposed. This alone was virtually without precedent. The justices rarely agreed to accelerate their schedule at all, but they
never
proposed a timetable that was even quicker than what the parties sought. Olson had asked for oral argument on December 5; Kennedy gave it to him on December 1.

Kennedy was miffed that the lawyer from the clerk’s office had not come prepared for their meeting. “E-mail it back to me before you send it out, so I can check it,” he said stiffly. The justices—five of them, anyway—
wanted
this case.

By the time of oral argument in
Bush v. Palm Beach County Canvassing Board
, it was clear that the Court should not have taken the case in the first place. The relevant legal issue concerned Gore’s “protest” of the election results—his demands for recounts in three remaining counties before Harris certified the election results as final. During the week that the Supreme Court case was pending, only one county of the three actually completed its recount, and in Broward, Gore netted 567 additional votes. In Miami-Dade, Bush supporters staged what became known as the “Brooks Brothers riot,” and the canvassing board shut down its recount. In Palm Beach, the canvassing board tried to finish counting its votes but missed Harris’s deadline. In any event, on Sunday night, November 26, in a solemn, nationally televised ceremony, Harris did certify the election, with Bush the winner by 537 votes. The Gore forces promptly filed a “contest,” which was the next legal procedure, after the precertification “protest,” to dispute the result of an election.

So on the morning of Friday, December 1, the justices appeared from behind their massive red curtain to hear an argument about an election “protest” that was, by the standards of this election, ancient history. Simply put, the issue before the justices didn’t matter anymore. Still, the mood in the courtroom was chipper, almost giddy. The process in Florida had been so bizarre and unpredictable that there was a sense—a hope—that the Court might put it all right.

In the chair closest to the bench, the seat of honor for spectators, was the stooped figure of Byron White. The former football star looked wizened and unwell, but he, like everyone else who had the chance, didn’t want to miss this (apparently) once-in-a-lifetime event.

The argument, however, quickly bogged down into a discussion of minutia. As revealed by their questions to Ted Olson, O’Connor and Kennedy seemed to be having a case of buyer’s remorse, regretting that they had ever granted certiorari. As O’Connor put it, “If it were purely a matter of state law, I suppose we normally would leave it alone, where the state supreme court found it, and so you probably have to persuade us there’s some issue of federal law here.”

Kennedy said, “We’re looking for a federal issue.” The questions for Gore’s lawyer, Harvard Law School professor Laurence Tribe, were also vigorous, but mostly the justices seemed to be looking for a graceful exit.

The justices’ conference took place on the same Friday afternoon as the argument. The justices did not take a formal vote, as they customarily did, but instead resolved to try to come up with some unanimous decision. They knew that in such a politically polarizing moment, the Court would send a comforting signal by uniting around a single result. Anyway, the stakes were fairly low. Because the protest was already over, there wasn’t a great deal that the Court could do. The conservatives, especially Scalia, were outraged that the Florida Supreme Court seemed to be rewriting the state election code. He wanted to slap that court down, at least rhetorically. O’Connor, too, didn’t like the way the Florida justices appeared to be freelancing—and helping Gore. The more liberal justices, especially Stevens, thought that Florida was merely doing what state courts always did—interpreting state law. Since the “contest” of the election was already under way, Stevens and his allies thought they should just dismiss the appeal and let the process in Florida run its course.

When the conference reached an ambiguous result, Rehnquist often drafted his own opinion and then tried to bring everyone around. Even with a case of this magnitude, the phlegmatic chief didn’t actually write this one himself but instead assigned a law clerk, Luke Sobota, to compose the first draft.

Rehnquist resolved to “vacate”—that is, overturn the decision of the Florida Supreme Court—but declined to set out any new rules of law in the decision. “After reviewing the opinion of the Florida Supreme Court, we find that there is considerable uncertainty as to the precise grounds for the decision,” the opinion stated. “This is sufficient reason for us to decline at this time to review the federal questions asserted to be present.” In other words, the chief was inviting the Florida court to explain itself better but not exactly ruling that it was wrong. This was a shot across the bow of the Florida justices, a warning against further activism in this case, but one with relatively little practical significance at this late date.

The Supreme Court’s brief opinion was released on Monday, December 4. It was delivered not by a specific justice but rather per curiam, “by the court,” a designation that the Court generally used for minor and uncontroversial opinions. If this had been the Court’s only decision in the 2000 presidential contest, the justices’ role would be remembered as a modest footnote in the story. As the justices themselves recognized, they never should have involved themselves in the election, but having done so, at least they did no significant harm.

The more important news of December 4 took place in Tallahassee, where a local judge ruled in the Gore team’s “contest.” He rejected any further recounts and upheld Harris’s certification of Bush’s victory. That decision now headed to the Florida Supreme Court—and, ultimately, back to the United States Supreme Court.

12

OVER THE BRINK

N
o case engaged the justices’ law clerks more than the election cases in 2000. Many of them spent the crucial period in December in a frenzy of outrage about the tactics and merits of one party or the other in the controversy. The question, though, is whether the clerks made any real difference in the outcome.