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.
Chinese Take-out
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 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 14th Amendment.
But this argument was so thin and tendentious that Kennedy reportedly had trouble committing it to writing -- with good reason. To anyone who had followed the Florida election, it was clear varied standards already had been applied throughout the state.
Wealthier precincts had benefited from optical voting machines that were simple to use and eliminated nearly all errors, while poorer precincts -- where many African-Americans and retired Jews lived -- were stuck with outmoded punch-card systems with far higher error rates. Some Republican counties also had conducted manual recounts on their own and those totals were part of the tallies giving Bush a tiny lead.
The suspended statewide recount, even if there were slight variations of standards regarding "intent of the voters," was designed to reduce these 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 occur if the recount went forward.
Plus, the losers in this perverse application of the 14th Amendment would include African-Americans whose legal rights the amendment had been created to protect.
Yet possibly even more startling than the stretched logic of O'Connor-Kennedy was the readiness of Rehnquist, Scalia and Thomas to sign on to the revamped opinion that was almost completely at odds with their own legal rationale for blocking the recount in the first place.
On the night of Dec. 11, that trio was ready to bar the recount because the Florida Supreme Court had created "new law." A day later, they agreed to bar the recount because the Florida Supreme Court had not created "new law," the establishment of precise statewide recount standards.
Never before in American history had U.S. Supreme Court justices exploited their extraordinary powers as brazenly to advance such clearly partisan interests as did these five justices.
Two-Hour Window
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