Immediately after the U.S. Supreme Court's unprecedented injunction, I wrote at Consortiumnews.com that if the high court insisted "on stopping the vote count and handing the presidency to George W. Bush, the United States will have embarked upon a dangerous political journey whose end could affect the future of all mankind...
"For American political institutions to ignore the will of the voters -- and to wrap partisanship in the judicial robes of the nation's highest court -- will almost certainly be followed by greater erosion of political freedom in the United States and eventually elsewhere."Illegitimacy and repression are two of history's most common bedfellows. Perhaps most chilling, at least for the moment, is the now-unavoidable recognition that the U.S. Supreme Court, the country's final arbiter of justice, has transformed itself into the right wing's ultimate political weapon. A dark cloud is descending over the nation."
Three days later, the other shoe from the U.S. Supreme Court was expected to drop. There should have been no real doubt how O'Connor and the other four would rule -- they clearly had decided that George W. Bush should be President -- but it was less certain what legal reasoning they would employ.
The mainstream press regarded O'Connor as a sort of "wise woman" beyond the taint of partisanship, but she had a personal as well as political reason for putting Bush in the White House. With her husband ailing from Alzheimer's disease, O'Connor was contemplating retiring and wanted a Republican appointed as her successor.
Consortiumnews.com political reporter Mollie Dickenson reported that "one of the court's supposed 'swing votes,' Justice Sandra Day O'Connor, is firmly on board for George W. Bush's victory. According to a knowledgeable source, O'Connor was visibly upset -- indeed furious -- when the networks called Florida for Vice President Al Gore on Election Night. 'This is terrible,' she said, giving the impression that she desperately wanted Bush to win."
But one optimist who thought that O'Connor would demand a ruling respectful of democratic principles was Al Gore. Dickenson reported that as late as 4 p.m. on Dec. 12, Gore was making campaign thank-you calls, including one to Sarah Brady, the gun-control advocate whose husband James Brady had been wounded in the 1981 assassination attempt against President Ronald Reagan.
"We're going to win this thing, Sarah," Gore said. "I just have all the faith in the world that Sandra Day O'Connor is going to be with us on this one."
An Acrobatic Ruling
As it turned out, Gore's confidence in O'Connor was misplaced. As the clock ticked toward a midnight deadline for Florida to complete any recount, O'Connor was working with Justice Kennedy to fashion a ruling that would sound principled but still would prevent a full recount and thus guarantee both George W. Bush's inauguration and Republican control over the appointment of future federal judges.
Yet, behind the closed doors of the court chambers, O'Connor and the other four pro-Bush justices were having a harder time than expected coming up with even a marginally plausible legal case. Indeed, outside public view, the five justices tentatively decided on one set of arguments on Dec. 11 but then reversed their thinking nearly 180 degrees heading into the evening of Dec. 12.
USA Today disclosed the inside story in a later article that focused on the stress that the Bush v. Gore ruling had caused within the court. While sympathetic to the pro-Bush majority, the article by reporter Joan Biskupic explained the court's flip-flop in legal reasoning.
The five justices had been planning to rule for Bush after oral arguments on Dec. 11. The court even sent out for Chinese food for the clerks, so the work could be completed that night, but events took a different turn.
The Dec. 11 legal rationale for stopping the 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 pro-Bush argument was highly technical, the rationale at least conformed with conservative principles, 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 state ruling based its reasoning entirely on state statutes that permitted recounts in close elections.
The revision drew little attention from the national press, but it created a crisis within the U.S. Supreme Court's majority. Justices O'Connor and Kennedy no longer felt they could agree with the "new law" rationale for striking down the recount, though Rehnquist, Scalia and Thomas still were prepared to use that argument despite the altered reasoning from the state court.
Searching for a new rationale, O'Connor and Kennedy veered off in a different direction. Through the day of Dec. 12, the pair 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 Fourteenth Amendment. But this argument was so thin and so tendentious that Kennedy reportedly had trouble committing it to writing -- with good reason.
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