The plans for finishing up the formal opinion on the evening of Dec. 11 were scrapped as O'Connor and Kennedy veered off in a very different direction.
Through the day on Dec. 12, they worked on an opinion arguing that the Florida Supreme Court had failed to set consistent standards for the recount and that the disparate county-by-county standards constituted a violation of the "equal protection" rules of the 14th Amendment.
The logic of this argument was quite thin and Kennedy reportedly had trouble committing it to writing. To anyone who had followed the Florida election, it was obvious that varied standards already had been applied throughout the state.
Wealthier precincts benefited from optical voting machines that were simple to use and eliminated nearly all errors, while poorer precincts with many African-Americans and retired Jews were stuck with outmoded punch-card systems with far higher error rates.
Some counties had conducted manual recounts, too, and those totals already were part of the tallies giving Bush a tiny lead
The statewide recount ordered by the Florida Supreme Court was designed to reduce those disparities and thus bring the results closer to equality. Applying the "equal protection" provision, as planned by O'Connor and Kennedy, turned the 14th Amendment on its head, guaranteeing less equality than would have occurred by letting the recount go forward.
Indeed, if one were to follow the "logic" of the O'Connor-Kennedy position, the only "fair" conclusion would have been to throw out Florida's presidential election in total. After all, the U.S. Supreme Court was effectively judging Florida's disparate standards to be unconstitutional. But that would have left Gore with a majority of the remaining electoral votes.
Or, more rationally, the U.S. Supreme Court could have given Florida more time to conduct the fuller recount that the O'Connor-Kennedy position envisioned, bringing in not only so-called "under-votes" in which a choice was hard to detect but "over-votes" in which citizens both punched the hole for their choice and wrote his name in.
However, Gore stood to benefit from either approach and that went against the pre-determined outcome to put Bush in the White House, whatever the legal excuse had to be.
Even more telling than the stretched logic of the O'Connor-Kennedy faction was the readiness of Rehnquist, Scalia and Thomas to sign on to a ruling that was almost completely at odds with their original legal rationale for blocking the recount.
On the night of Dec. 11, that trio was ready to bar the recount because the Florida Supreme Court had created "new law." On Dec. 12, the same three justices were voting to block the recount because the Florida Supreme Court had not created "new law" by establishing precise statewide recount standards.
The five conservatives had devised their own Catch-22. If the Florida Supreme Court set clearer standards, that would be struck down as creating "new law." If the state court didn't set clearer standards, that would be struck down as violating the "equal protection" principle. Heads Bush wins; tails Gore loses.
There was one other clever twist to the conservative majority's maneuvering. When the ruling was issued at around 10 p.m. on Dec. 12, the O'Connor-Kennedy rationale asserted that the 14th Amendment required a recount with equal standards applied statewide, but then gave Florida only two hours to complete the process before a deadline of midnight.
Because this two-hour window was absurdly unrealistic, the result of the ruling was to give Bush the White House based on a 537-vote lead in the "official" Florida results, as overseen by the state administration of his brother, Gov. Jeb Bush.
Denying Politics
After the court's ruling and Gore's gracious-but-pained concession speech the next day, Justice Thomas told a group of high school students that partisan considerations played "zero" part in the court's decisions.
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