The Nine [199]
CHAPTER 11: TO THE BRINK
a dozen roses for him: Biskupic, Sandra Day O’Connor, pp. 167–68.
Stoessel’s party: See Jeffrey Toobin, Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election, pp. 248–49; Evan Thomas and Michael Isikoff, “The Truth Behind the Pillars,” Newsweek, Dec. 25, 2000; Jess Bravin et al., “For Some Justices, the Bush-Gore Case Has a Personal Angle,” Wall Street Journal, Dec. 20, 2000; Biskupic, Sandra Day O’Connor, pp. 308–9.
“Pool hustler”: Biskupic, Sandra Day O’Connor, pp. 31, 293.
CHAPTER 12: OVER THE BRINK
many clerks think they are more important: For a realistic and moderate view of the role of law clerks, see Emily Bazelon and Dahlia Lithwick, “Endangered Elitist Species,” Slate, posted June 13, 2006, http://www.slate.com/id/2143628/, which discusses Todd C. Peppers, Courtiers of the Marble Palace, and Artemus Ward and David L. Weiden, Sorcerers’ Apprentices.
“Please make sure”: For details of the actions of the Bush and Gore teams in connection with Bush v. Gore, see Toobin, Too Close to Call, chs. 15–16.
CHAPTER 13: PERFECTLY CLEAR
a Ginsburg clerk: David Margolick et al., “The Path to Florida,” Vanity Fair, Oct. 2004; Toobin, Too Close to Call, chs. 15–16.
how votes are counted after the election: See, e.g., Jack Balkin, “Bush v. Gore and the Boundary between Law and Politics,” Yale Law Journal 110 (2001): 1407.
as innumerable commentators subsequently pointed out: For a recent case, Bush v. Gore has already generated a vast literature. See, e.g., Bruce Ackerman, ed., Bush v. Gore: The Question of Legitimacy, New Haven: Yale University Press, 2002; E. J. Dionne Jr. and William Kristol, eds., Bush v. Gore: The Court Cases and the Commentary, Washington: Brookings Institution Press, 2001; Richard A. Posner, Breaking the Deadlock, Princeton: Princeton University Press, 2001; Cass R. Sunstein and Richard A. Epstein, eds., The Vote: Bush, Gore & the Supreme Court, Chicago: University of Chicago Press, 2001.
The journalists’ confusion was understandable: In fairness, I should disclose that I was one of those reporters trying to translate the opinion on live television.
The recount of the 60,000 undervotes: After the election, the most comprehensive examination of the ballots in Florida was led by eight news organizations, including the New York Times and the Washington Post, and conducted by the National Opinion Research Center. See http://www.norc.org/fl/voting.asp. The “media recount,” as it became known, examined all 175,010 ballots in the state that were undervotes or overvotes and thus not counted in the final tally. Under all of the contemplated scenarios, if a full statewide recount had been conducted, the media recount showed that Gore would have won Florida; if the Court had allowed the recount to proceed in just the disputed counties, according to this recount, Bush would have won. As with the official election results, the margins between the candidates in the media recount were tiny, just a few hundred votes; moreover, this recount did not review the already counted ballots, nor could it capture the uncertainties of vote counting in the real world. In short, it is fair to say that there is no way of knowing with certainty whether Bush or Gore would have won if the Court had allowed the recount to proceed.
CHAPTER 14: “A PARTICULAR SEXUAL ACT”
where a Supreme Court justice could mingle: Anne-Marie Slaughter, A New World Order, ch. 2.
an unusual conversation with one of his law clerks: John C. Jeffries Jr., Justice Lewis F. Powell Jr. See also Joyce Murdoch and Deb Price, Courting Justice: Gay Men and Lesbians v. the Supreme Court, pp. 272–75.
CHAPTER 15: “A LAW-PROFESSION CULTURE”
“He always had a book in front of his face”: Talbot, “Supreme Confidence.”
Black Hawk air combat helicopters: David G. Savage and Richard A. Serrano, “Scalia Was Cheney Hunt Trip Guest; Ethics Concern Grows,” Los Angeles Times, Feb. 5, 2004; Adam Nossiter, Associated Press Wire, Feb. 5, 2004.
CHAPTER 16: BEFORE SPEAKING, SAYING SOME THING
O’Connor was assigned to write