"The vote in Bush v. Gore was, like all decisions at the High Court, arrived at in secret conference. But this one determined who would be president. We didn't know just how close it was--until now."
Excerpt from David A. Kaplan's book, The 'Accidental President,' as it appeared in the September 17, 2001 edition of Newsweek. This edition was on the newsstands on the morning of September 11, 2001 (taken off the newsstands and replaced two days later by a special edition covering the events of September 11, 2001):As both campaigns and the entire country awaited the U.S. Supreme Court ruling in Bush v. Gore, the vice president couldn't sit still. The vote would decide who'd win Election 2000. The process kept starting and stopping. Now, Gore needed to vent his emotions, with whatever degree of optimism he could muster.
So on Tuesday afternoon, December 12, Gore decided to write an Op-Ed for The New York Times, on the assumption the Court would rule in his favor. "As I write this," the piece began, "I do not know what the Supreme Court will decide." Gore repeated the themes of the five-week post-election struggle: count all the votes "so that the will of the people" was honored; work "for the agenda that Senator [Joe] Lieberman and I put forward in the campaign," which "50 million Americans" supported; and appreciate that history and the "integrity" of the national government demanded he fight on after Election Day.
Gore acknowledged that "no single institution had been capable of solving" the electoral standoff and that this resulted in "continued uncertainty." But the greater good, he contended, was being served. Invoking Lincoln and Jefferson, he mused on the "consent of the governed" and the "wellspring of democracy." Jefferson had "justified revolution" because the people of the colonies had not given their consent. How could the U.S. Supreme Court justices "claim for themselves" the right to determine the presidency? It was up to the people. He concluded by quoting Lincoln's First Inaugural, delivered a month before Fort Sumter: "Why should there not be a patient confidence in the ultimate justice of the people?"
It was only a draft, and Gore might've toned it down before publication, given its intimations of revolution and allusions to the Civil War. But it was strongly worded, all the more so as the justices had Bush v. Gore in front of them. The vice president phoned Walter Dellinger, a former solicitor general under Bill Clinton, for counsel. "I've spent the last few hours writing an Op-Ed for tomorrow's Times," Gore told him. "I want your judgment on whether I ought to run this or not."
Dellinger liked it, suggested some changes that Gore punched into his laptop, and they were done. Gore said he would send it to Bill Daley, the campaign chairman, for one last look. "Is there anything else I need to think about?" he asked Dellinger.
"As a lawyer, I wouldn't write an Op-Ed on a case I'd argued that was pending. But, then, you're not the lawyer. You're the client, so there's no rule about keeping silent." Dellinger then added, "But still, you should be thinking about whether running this would provoke the Court." After all, it was Gore who'd told aides after the recounts were halted over the weekend that no one in the campaign should "trash" the Court. Might this Op-Ed be regarded as the velvet-gloved equivalent?
"O.K., let me think about it."
Gore paused for only seconds, then made up his mind. He chuckled. Said the vice president of the United States about the Supreme Court: "----'em."
The few people in Goreworld who heard about his remark had the identical reaction: if he had only shown that kind of animation during the campaign, he wouldn't have been in the position of having to make the remark.
The Op-Ed never ran. Before the Times closed the piece, it became moot. At 10 p.m. on December 12, the U.S. Supreme Court issued its ruling that made George W. Bush the president-elect.
That wrenching decision pitted the Court's five conservatives against its four liberals, producing vitriolic opinions not seen in a generation, in a case many thought the Court should not have taken in the first place because state elections weren't federal judicial matters. Yet within weeks of Bush v. Gore, many of the justices gave speeches trying to defuse the controversy. All was well at the High Court, they said; everybody had moved on. Given the public record, that seemed plausible. And because the Court's "conference"--where the Supremes, without clerks or anyone else, debate cases and render their votes--is ultra-secret, it's hard to pierce the judicial veil.
But behind the scenes, in remarkable post-decision moments previously unreported, the justices were stewing. In particular, the dissenters--Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens--couldn't believe what their conservative brethren had wrought. How could the conservative Court majority decide to step into a presidential election, all the more so using the doctrinal excuse of "equal protection"? Equal protection? That's the constitutional rationale the liberals had used for a generation to expand rights, and the conservatives despised it. But now the conservatives were embracing the doctrine, claiming that different recount standards in Florida counties amounted to unequal protection? The whole thing smelled bad.
When the justices' counterparts on the Russian Constitutional Court came to town for a private gathering, the American justices let slip the recriminations. Those scenes shed light on what transpired inside the High Court as the justices determined who'd be the next president--and on the raw emotional fallout from the fateful decision.
Given the hard feelings, the amazing aspect of Bush v. Gore is that it just might've gone the other way. Justice Anthony Kennedy--the key swing vote, the man the Court's law clerks once dubbed "Flipper" for his equivocations--had wavered, enough that Souter thought until the very end that he'd get him. If Kennedy could be flipped, the 5-to-4 ruling for Bush would become a 5-to-4 win for Gore. They'd find an equal-protection violation, send the case back to the Florida justices to fix standards and administer the best recount they could under the circumstances and before December 18, and then leave it to the political branches--the Florida Legislature and, if need be, the U.S. Congress--to settle for good. (The political composition of Congress and the Legislature suggests Bush probably would've won in the end anyway.) But the High Court's decision short-circuited the process. The vote was close. But we never knew--until now--just how close.
A month after the decision, Souter met at the Court with a group of prep-school students from Choate. Souter was put on the Court in 1990 by Bush's father, advertised as a "home run" for such constitutional crusades as overturning Roe v. Wade. Instead, Souter turned out to be a non-doctrinaire New Englander who typically sided with the liberal justices. It didn't make him a liberal--this was a passionately modest man in matters of law as well as life--as much as it reflected how far the rest of the Court had yawed starboard. Souter told the Choate students how frustrated he was that he couldn't broker a deal to bring in one more justice--Kennedy being the obvious candidate. Souter explained that he had put together a coalition back in 1992, in Planned Parenthood v. Casey, the landmark abortion case in which the Court declined by a 5-to-4 vote to toss out Roe; Souter, along with Kennedy and Justice Sandra Day O'Connor, took the unusual gesture of writing a joint opinion for the majority in that case.
If he'd had "one more day--one more day," Souter now told the Choate students, he believed he would have prevailed. Chief Justice William Rehnquist, along with Justices Antonin Scalia and Clarence Thomas, had long ago become part of the Dark Side. O'Connor appeared beyond compromise. But Kennedy seemed within reach. Just give me 24 more hours on the clock, Souter thought. While a political resolution to the election--in the Florida Legislature or in the Congress--might not be quick and might be a brawl, Souter argued that the nation would still accept it. "It should be a political branch that issues political decisions," he said to the students. Kennedy, though, wouldn't flip. He thought the trauma of more recounts, more fighting--more politics--was too much for the country to endure. (Souter and Kennedy, as well as the other justices, declined to be interviewed on the record.)
Mild-mannered by nature, Kennedy had a grandiose view of his role. In a memorable profile of the justice in California Lawyer magazine back in 1992, Kennedy had agreed to let the writer into chambers just before going into the courtroom to announce a major ruling. "Sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own towline," Kennedy ruminated to his listener. Then the justice self-consciously asked for solitude. "I need to brood," Kennedy said. "I generally brood, as all of us do on the bench, just before we go on." The difference was that most of them didn't do it on cue.
The margin of victory for George W. Bush wasn't 154, 165, 193 or 204 votes (depending on which numbers you believe from the abbreviated recounts). Nor is the operative margin Florida Secretary of State Katherine Harris's initial number of 930. The sands of history will show Bush won by a single vote, cast in a 5-to-4 ruling of the U.S. Supreme Court. The vote was Tony Kennedy's. One justice had picked the president.
In a Virginia hotel, near the makeshift Bush transition office, Karl Rove--the campaign's political guru--was watching MSNBC when the Court ruling was announced. He called Bush in Texas; the governor was watching CNN, which took longer to decipher the opinions. "This is good news," Rove told Bush. "This is great news."
"No, no, this is bad news," Bush replied. Rove was the first person Bush talked to as the verdict came in--Bush had no sense initially he'd just been declared the winner by the stroke of the Court's pen. It was very confusing. "Where are you now?" he asked Rove.
"In the McLean Hilton--standing in my pajamas."
"Well, I'm in my pajamas, too," said the new president-elect.
Rove laughed at the vision of them both, at this historic moment, in their PJs. Soon enough, Bush talked to his field general, Jim Baker, who talked to Ted Olson and the other lawyers on the team. Within half an hour, Bush was convinced Gore had finally run out of tricks.
A month later, the animosities within the Court finally spilled over at a gathering inside the marble temple. It was a meeting known only to the participants, as well as a few translators and guests. Yet, in illuminating how Bush v. Gore came to be, it was the seminal event. It happened in January as Inauguration Day approached--after the 37 days of Florida, but while emotions were still raging. It was the time when the justices let their guards down, without knowing they were providing an X-ray into their hearts.
The Americans were playing host to special visitors from Russia. Their guests were six judges, all part of that country's decade-long experiment with freedom after Communism. It was the fifth gathering between the judges and their counterparts at the Supreme Court--an attempt by the most powerful tribunal in the world to impart some of its wisdom to a nascent system trying to figure out how constitutional law really worked in a democracy. It was by no means obvious. To outsiders, the idea that unelected judges who served for life could ultimately dictate the actions of the other two branches of American government, both popularly elected, was nothing short of unbelievable.
These were always collegial meetings inside the Supreme Court. This time--over the course of two days, January 9 and 10--seven American justices participated, everyone but Souter and Thomas. The justices from the Constitutional Court of the Russian Federation--Yuri Rudkin, Nikolai Seleznev, Oleg Tyunov, and Gennady Zhilin--were joined by judges from the Constitutional Court of the Republic of Dagestan and the Constitutional Supervision Committee of the Republic of Northern Ossetia-Alania. They all met in the Court's private ceremonial conference rooms: for an informal reception, the blue-motif West Conference Room; for hours of discussions about law and American heritage, the rose-motif East Conference Room, with a portrait of the legendary 19th-century chief justice John Marshall above the fireplace.
But this year, the discussions weren't about general topics such as due process or free expression or separation of powers. Some of the Russians wanted to know how Bush v. Gore had come to pass--how it was that somebody other than the electorate decided who ran the government. That was the kind of thing that gave Communism a bad name. "In our country," a Russian justice said, bemused, "we wouldn't let judges pick the president." The justice added that he knew that, in various nations, judges were in the pocket of executive officials--he just didn't know that was so in the United States. It was a supremely ironic moment.
Bush v. Gore was the elephant in the room--the ruling was on the minds of the Russians, but would it be rude to raise it? Once one of them did, it elicited an extraordinary exchange, played out spontaneously and viscerally among the American justices, according to people in the room. It could have been a partial replay of the Court conference itself in Bush v. Gore.
Justices don't discuss their decisions with others. That's because their views are supposed to be within the four corners of their written opinions. A good legal opinion isn't supposed to need further explanation. Memorialized in the law books, a Court opinion spoke for itself to future generations. But Bush v. Gore was so lean in its analysis, so unconvincing in its reasoning, that it led all manner of observers to wonder just where the Court had been coming from. Maybe that's why some of the justices so readily engaged their guests.
Stephen Breyer, one of the dissenters and a Clinton appointee, was angry and launched into an attack on the decision, right in front of his colleagues. It was "the most outrageous, indefensible thing" the Court had ever done, he told the visiting justices. "We all agree to disagree, but this is different." Breyer was defiant, brimming with confidence he'd been right in his dissent. "However awkward or difficult" it might've been for Congress to resolve the presidency, Breyer had written, "Congress, being a political body, expresses the people's will far more accurately than does an unelected Court. And the people's will is what elections are about." To have judges do it instead--as the country learned in the Hayes-Tilden presidential stalemate of 1876--not only failed to legitimize the outcome, but stained the judiciary. That was "a self-inflicted wound" harming "not just the Court, but the nation."
In contrast to Breyer, Ginsburg--Clinton's other appointee--was more baffled than annoyed, attempting to rationalize the legitimacy of the ruling that so ripped away her confidence in the neutrality of the Court. "Are we so highly political, after all?" she said. "We've surely done other things, too, that were activist, but here we're applying the Equal Protection Clause in a way that would de-legitimize virtually every election in American history."
"I'm so tired," offered Justice John Paul Stevens. "I am just so exhausted." His weariness may have reflected the fact that he was the oldest member of the Court at 80--or that he'd been fighting these battles from the left for 24 years, and the number he won was decreasing.
O'Connor talked pedantically about the Electoral College, which, of course, had nothing to do with the Russians' curiosity. Rehnquist and Scalia--the intellectual firebrands on the Court's right flank--said almost nothing, leaving it up to a floundering Kennedy to try to explain a 5-to-4 ruling in which he was the decisive vote, the justice who gave the presidency to Bush. The virtual silence of Rehnquist and Scalia led some in the room to wonder if the two justices were basically admitting their ruling was intellectually insupportable, all the more in a setting where there might be give-and-take. Maybe they didn't think this was the right forum or audience in which to engage a debate. In any event, Kennedy was left holding the bag.
"Sometimes you have to be responsible and step up to the plate," Kennedy told the Russians. "You have to take responsibility." He prized order and stability. Chaos was the enemy. This was vintage Kennedy, who loved to thump his chest about the burden of it all. For example, back in the controversial 1989 decision that flag-burning was protected by the First Amendment, Kennedy joined the 5-to-4 majority, but dramatized his discomfort. "This case, like others before us from time to time, exacts its personal toll," he wrote. "The hard fact is that sometimes we must make decisions we do not like."
Everything Kennedy did or thought seemed to him to carry great weight. It had to--he was a justice of the Supreme Court. It was as if Kennedy kept telling himself, and us, that--but for him and his role--the Republic might topple. In Bush v. Gore, that meant entering the breach to save the Union from an electoral muddle that could go on and on. The equal-protection stuff? That was the best he could come up with on short notice. It was apparently no big deal that there was another branch of the government right across the street--democratically elected, politically accountable, and specifically established by the Constitution, as well as by federal statute, to finally determine a disputed presidential election. "Congress" wasn't even mentioned in the opinions by the Court's conservatives. Congress was the appropriate, co-equal branch not because it was wisest, but because it was legitimate.
What was Kennedy's explanation for becoming the deus ex machina? It was Bush and Gore who should be blamed for bringing their problems to the Court. "When contending parties invoke the process of the courts," he wrote, "it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront." But that was theatrical nonsense. The justices refused to hear 99 percent of the appeals they were asked to take. Since 1925, their discretion was unbridled--they could decline to take a case because it failed to raise significant issues, because the questions involved were purely state affairs, because they'd decided a similar appeal in recent years, or for no reason at all. Accepting jurisdiction in the presidential election of 2000 showed not respect for the rule of law, but the hubris of kings. Any imminent constitutional "crisis" was only in the imaginations of the justices.
Nobody "forced" Kennedy or four of his brethren to hear Bush v. Gore. In the very first instance, they had to choose who chose--whether the Court or Congress was the proper branch to settle the presidential dispute. The justices chose themselves.
Body language