The behind-the-scenes court drama began on Dec. 8, 2000. Bush was clinging to an official lead of only a few hundred votes out of six million cast in Florida when the Bush forces were dealt a crushing blow. A divided Florida Supreme Court ordered a statewide review of ballots that had been kicked out by antiquated counting machines.
The recount began on the morning of Dec. 9. Immediately, the canvassers began finding scores of legitimate votes that the machines had rejected.
Despite a supposed reverence for states' rights and a disdain for federal interference, Bush's lawyers raced to the U.S. Appeals Court in Atlanta to stop the count. Dominated by conservatives, the appeals court held to established precedents and refused to intervene.
A frantic Bush then turned to the U.S. Supreme Court in Washington. There, in the late afternoon, the high court took the unprecedented step of issuing an injunction to stop the counting of votes cast by American citizens.
Justice Scalia made clear that the purpose of the court's action was to prevent Bush from falling behind in the tally and thus raising questions about his legitimacy should the Supreme Court later declare him the winner.
That outcome would "cast a cloud" over the "legitimacy" of an eventual Bush presidency, explained Scalia. "Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires," Scalia wrote.
Trusting the Law
Nevertheless, on Dec. 11, Gore and his lawyers voiced confidence that the rule of law would prevail, that the U.S. Supreme Court would rise above any partisan concerns and would insist that the votes be counted and that the will of the voters be respected.
The Gore team went before Rehnquist's court apparently still unaware that whatever they argued, the five Republican partisans were determined to make Bush the next president.
The evidence is now clear that Rehnquist and his four Republican colleagues decided on the outcome first and worked out the rationale second. Indeed, their legal logic flipped from the start of their deliberations to the end, but their pro-Bush verdict remained steadfast.
USA Today disclosed this inside story in an article about the strains that the Bush v. Gore ruling created within the court. Though the article was sympathetic to the pro-Bush justices, it disclosed an important fact: that the five were planning to rule for Bush after oral arguments on Dec. 11. The court even sent out for Chinese food for the clerks, so work could be completed that night. [USA Today, Jan. 22, 2001]
At that point, the legal rationale for stopping the Florida recount was to have been that the Florida Supreme Court had made "new law" when it referenced the state constitution in an initial recount decision rather than simply interpreting state statutes.
Even though this basis for giving Bush the White House was highly technical, the rationale at least conformed with conservative principles, which are supposedly hostile to judicial "activism." But the Florida Supreme Court threw a wrench into the plan.
On the evening of Dec. 11, the state court submitted a revised ruling that deleted the passing reference to the state constitution. The revised ruling based its reasoning entirely on state statutes, which permitted recounts in close elections.
This modified state ruling opened a split among the five conservatives. Justices O'Connor and Kennedy no longer felt they could agree with the "new law" rationale for blocking the recount, though Justices Rehnquist, Scalia and Thomas were prepared to stick with the old thinking even though its foundation had been removed.
Finding a Reason
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