The judicial gymnastics showed that the five justices settled on their desired political outcome Bush's victory and then dressed up their partisan choice in acceptable legal verbiage.
In an article on Jan. 22, 2001, USA Today's legal correspondent Joan Biskupic described the inside story of the strains that the Bush v. Gore ruling had created within the court.
Though the article was sympathetic to the five conservative justices, it disclosed an important fact: that the five justices were 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.
The 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 the argument was technical, it at least conformed with the conservative principles of the five-member majority, supposedly hostile to judicial "activism."
A Wrench
However, 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 a passing reference to the state constitution. The revised state ruling based its reasoning entirely on state statutes that permitted recounts in close elections.
This revised state ruling drew little attention from the press, but it created a crisis for the five justices. O'Connor and Kennedy no longer felt they could agree with the "new law" rationale for striking down the recount, though Justices Rehnquist, Scalia and Thomas still would.
O'Connor and Kennedy then veered off in very different direction. Through the day of 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.
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 had 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 were part of the tallies giving Bush a tiny lead.
The statewide court-ordered recount 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 letting the recount go forward. The O'Connor-Kennedy "reasoning" ensured that the votes of wealthy Floridians were given greater weight than those of minorities and the poor.
Yet possibly even more startling than the stretched logic of O'Connor and Kennedy 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 trio prevented the recount because the Florida Supreme Court had not created "new law," the establishment of 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.
Rationalizing the Rationale
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