By Joan Biskupic, CNN Senior Supreme Court analyst
Justice Sandra Day O’Connor provided the early framework that steered the outcome in the dispute over the 2000 presidential election and ensured George W. Bush would win the White House over Al Gore, Supreme Court documents released on Tuesday show.
Memos found in the newly opened files of the late Justice John Paul Stevens offer a first-ever view of the behind-the-scenes negotiations on Bush v. Gore at the court. They also demonstrate the tension among the nine justices being asked to decide a presidential election on short deadlines.
The documents opened at the Library of Congress help reveal how the now-retired O’Connor, the first woman on the high court and a justice steeped in politics from her early days in the Arizona legislature, partnered with Justice Anthony Kennedy, effectively squeezing out an argument advanced by then-Chief Justice William Rehnquist.
The strong hand of O’Connor, who was at the ideological center of the court in this era, is not wholly surprising. O’Connor was also known for trying to get out ahead of deliberations, and her four-page memo was circulated to colleagues even before oral arguments. Her move may have guaranteed that she and Kennedy had the greatest influence on the final “per curiam” opinion that spoke for a five-justice majority.
That final 5-4 Bush v. Gore decision stopped county recounts for Florida’s decisive presidential electors and gave then-Texas Gov. Bush the victory over then-Vice President Gore.
The five conservative justices (O’Connor, Kennedy, Rehnquist, Antonin Scalia and Clarence Thomas) sided with Bush. The four liberal justices (Stevens, with David Souter, Ruth Bader Ginsburg and Stephen Breyer) aligned with Gore and dissented angrily.
The court’s views mirrored the deep divisions in the country after an election that for weeks remained too close to call and still haunts presidential contests. The decision has endured as one of the greatest threats to the court’s vaunted impartiality and institutional stature, perhaps eclipsed only recently by the court’s 5-4 decision last June reversing nearly a half century of abortion rights.
O’Connor’s views, expressed in a December 10, 2000, memo, were endorsed by fellow conservative-centrist Kennedy as he took the lead in writing the unsigned “per curiam” opinion issued late on the evening of December 12, the new documents show.
The shared views of O’Connor and Kennedy eventually forced Rehnquist to abandon his effort to author the main opinion with a boundary-pushing view of federal election principles — views that would come up during Donald Trump’s attempt to overturn the 2020 presidential election.
Even as the outcome of the case plainly pleased — and alternately upset — a divided nation, questions have remained over the crafting of the unsigned December 12 opinion. It was issued after 36 days of election uncertainty in Florida but just one day after the justices had held oral arguments in Washington.
The Florida results had been too close to call at the end of Election Day, November 7. And it became clear that, with other states nearly evenly divided between the candidates, the ultimate winner of Florida’s 25 electoral college votes would become president.
Amid ballot recounts in various challenged counties, the Florida secretary of state certified a 537-vote margin on November 26 for Bush, from 6 million votes cast. Bush strove to stop the recounts as Gore continued to challenge the state’s tallies. When the Supreme Court ruled on December 12, it ended the count, declaring that the Florida recount standards varied too widely to be fair and to meet the guarantee of equal protection of the law.
O’Connor laid the groundwork for that result in her December 10 memo to all her colleagues as she condemned a Florida state Supreme Court decision ordering selective recounts of “undervotes” in certain counties.
She opened by highlighting state legislative authority to set the rules for the appointment of state presidential electors but quickly focused on the flaws, as she perceived them, of the ongoing recounts ordered by the state court.
“The Florida Supreme Court provided no uniform, statewide method for identifying and separating the undervotes,” O’Connor wrote, referring to instances when machines had failed to detect a vote for president. “Accordingly, there was no guarantee that those ballots deemed undervotes had not been previously tabulated. More importantly, the court failed to provide any standard more specific than the ‘intent of the voter’ standard to govern this statewide undervote recount. Therefore, each individual county was left to devise its own standards.”
The system triggered by the Florida Supreme Court “in no way resembles the statutory scheme created by the Florida legislature” for the appointment of electors, said the justice who had once served as Arizona state Senate majority leader, the first woman nationwide to hold such the top post in a state senate.
The next day, Kennedy wrote to the chief justice, “Sandra’s memorandum sets forth a very sound approach” and said he wanted to build on it. He suggested he would point up how the varying recount practices breached the guarantee of equal protection.
Rehnquist on independent state legislature power
The correspondence in the Stevens files suggests that Rehnquist thought he might be able to work with Kennedy on the court’s main opinion and to press the chief’s own theory of complete and independent state legislative power.
Rehnquist wrote in a December 11 memo that he and Kennedy were “working on a composite opinion.” Rehnquist hoped to send around a copy that evening.
By the next day, however, Kennedy had fully separated himself from Rehnquist’s view of complete state legislative authority over presidential elections with no check by a state judges interpreting the state’s constitution.
As a result, Rehnquist wrote to the group, his own “present draft cannot accurately be labeled” the opinion for the court. Rehnquist said he would be re-circulating his views, going beyond the O’Connor-Kennedy position, as a separate concurring opinion.
The Rehnquist view, backed only by Scalia and Thomas, would have given new power to state legislatures to control presidential election battles. Under this “independent state legislature” theory — which was revived by Trump supporters in 2020 and is at the heart of a pending North Carolina dispute — state courts lack the authority to find that a state legislature’s electoral practices violate the state’s constitution.
Kennedy had foreshadowed his reluctance to accept that theory during the Bush v. Gore oral arguments. “It seems to me essential to the republican theory of government that the constitutions of the United States and the states are the basic charter, and to say that the legislature of the state is unmoored from its own constitution, and it can’t use its court … (is) it seems to me a holding which has grave implications for our republican theory of government.”
O’Connor, similarly breaking from the Rehnquist view, wrote Kennedy a note on December 12 that she would join his per curiam opinion.
Racing to meet sliding deadlines
Other justices, meanwhile, were immersed in their separate writings.
Stevens’ files contain early drafts of his dissenting opinion that closed with the biting line: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear,” he wrote. “It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
Souter, Ginsburg and Breyer each began penning separate dissents, too. As the hours passed, they wanted to finish by the end of December 12, which was the deadline for establishing the presidential electors of each state.
The majority contended that no time remained to standardize recount rules to meet constitutional strictures for equal protection of the law. Its per curiam decision was concluding that Florida’s recount process was “inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount.” The majority also declared, “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
Rehnquist sent around a note at one point on the big decision day that acknowledged, “the previously agreed upon deadline of one o’clock this afternoon for release of the opinions is unrealistic. I suggest we strive mightily to have everything in shape for the Pubs unit by four o’clock this afternoon at the latest.”
Later that day, Rehnquist tried again: “David (Souter) advises that he is preparing a dissent, which he thinks he will be able to circulate by 5 o’clock p.m. I think that we should move the deadline back once more, but this time be absolutely certain that all opinions in this case be ready to go to the Publications Unit by 6 o’clock. The Pubs Unit will probably take at least an hour to prepare it, and this means that it can be released at 7 o’clock p.m. I urge all of you to keep up the efforts we have all been making, because I am unwilling to move the deadline further back unless there is some sort of a mechanical breakdown.”
The ruling became public around 10 p.m. ET. Gore conceded the next day.
Documents reveal the immediate bitterness between justices
“Going home after a long day,” Scalia wrote to fellow justices when it was all over on December 12, “I cannot help but observe that those of my colleagues who were protesting so vigorously that the Court’s judgment today will do it irreparable harm have spared no pains — in a veritable blizzard of separate dissents — to assist that result. Even to the point of footnote 4 in Ruth’s offering (I call it the Al Sharpton footnote), alleging on the basis of press reports ‘obstacles to voting disproportionately encountered by black voters.'”
Well-known for his take-no-prisoners dissenting views, Scalia added, “I am the last person to complain that dissents should not be thorough and hard-hitting (though it would be nice to have them somewhat consolidated). But before vigorously dissenting (or, come to think of it, at any other time) I have never urged the majority of my colleagues to alter their honest view of the case because of the potential ‘damage to the Court.’ I just thought I would observe the incongruity. Good night.” He signed it, “Sincerely, Nino.”
In their opinions, liberal dissenters had emphasized the cost to the court as an institution and, in Breyer’s words, “damage” to the country.
Similarly, Kennedy wrote to colleagues that same day, “I do not usually respond to dissenting opinions, and will not do so for the per curiam in this case. I take the occasion in this memo, however, to say that the tone of the dissents is disturbing both on an institutional and personal level. I have agonized over this and made my best judgment. Some of the dissenters in fact agree on the equal protection point, but take great pains to conceal that agreement. The dissents, permit me to say, in effect try to coerce the majority by trashing the Court themselves, thereby making their dire, and I think unjustified, predictions a self-fulfilling prophecy.”
The public fallout
Many of the justices were reluctant even with time to discuss the case, although Scalia regularly declared to critics, “Get over it!”
O’Connor seemed more chastened, expressing some regret over the years that the court had taken up the dispute. The 1981 appointee of President Ronald Reagan stepped down from the court in January 2006, when she retired to care for her husband, who was struggling with Alzheimer’s disease. In 2018 she revealed that she herself had been diagnosed with the disease. She turned 93 in March and lives in Arizona.
In 2013, she told members of the Chicago Tribune editorial board she was not sure the court should have intervened.
“It took the case and decided it at a time when it was still a big election issue,” O’Connor told the Tribune. “Maybe the court should have said, ‘We’re not going to take it, goodbye.'”
She added, according to the paper’s account, “Obviously the court did reach a decision and thought it had to reach a decision. It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”
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