• Choose a category
• All
• Classic-Fiction

By Root 8519 0

and Republican majorities in both houses of the state legislature. The only remaining Democratic power center in the state was the supreme court, where all seven members had been appointed by Democratic governors. (One justice was a joint appointment by Bush and his Democratic predecessor, Lawton Chiles.) The court wasn’t shy about favoring a progressive—and Democratic—agenda either, as the Bush campaign soon discovered. On Tuesday, November 21, the Florida Supreme Court ruled that the recounts should proceed for the next five days and that Harris could not certify the results until Sunday, November 26. Clearly, the Florida justices felt a great deal of pique toward Harris, whose conduct they described as “unreasonable,” “unnecessary,” “arbitrary,” “contrary to law,” and “contrary to the plain meaning of the statute.” But the unanimous opinion was not very well reasoned. There was no explanation for why the justices chose to extend the deadline five days—as opposed to four, or six, or any other number. In denouncing Harris for looking too political, the Florida court wound up looking political itself. Still, the Gore forces were suddenly back in business.

The question, then, was whether the U.S. Supreme Court would agree to get involved, and the Bush campaign had a noted authority at close range. About two days before the argument in the Florida Supreme Court, John G. Roberts Jr. came to Tallahassee. Though he was only forty-five at the time, Roberts was already among the top advocates of his generation before the justices. (Eight years earlier, George H. W. Bush had tapped Roberts for a seat on the D.C. Circuit, but Democrats in the Senate stalled the nomination into oblivion.) In Tallahassee, Roberts helped Michael Carvin prepare for his (unsuccessful) representation of Bush before the Florida justices and then advised Baker on how to get the U.S. Supreme Court to take the case. The conventional wisdom was that the justices would want no part of the controversy. But Roberts’s gut told him otherwise. They’ll take the case, Roberts vowed to Baker, and you’ll win it there, too.

It had been two weeks and a day since the election, and until this moment the controversy in Florida still seemed remote from the work of the Court. As Judge Middlebrooks had said, the management of elections is traditionally governed by state law, which is in turn interpreted by state courts. The U.S. Supreme Court had no authority to tell the Florida Supreme Court how to interpret Florida statutes. Not once in the history of their Court had the justices in Washington imposed themselves in the middle of vote counting in one of the states. Why would they do it now?

Roberts had to return to Washington to argue a different case before the Supreme Court, but following his advice, the Bush team filed its petition for certiorari on Wednesday, November 22, the day before Thanksgiving. The Republicans essentially gave the justices a menu of choices. The Republicans claimed that the Florida court violated federal laws on the conduct of elections; that it violated Article II of the Constitution, which suggests that state legislatures, not state courts, make the rules for presidential elections; that the recount process violated the Equal Protection and Due Process Clauses of the Constitution.

The secret to Olson’s brief was more in tone than in substance. He played on the justices’ collective vanity (not just Kennedy’s), saying in essence that they were the only grown-ups in the room. All the others—especially the justices of the Florida court—were just a bunch of partisan hacks. Olson claimed that the Florida court opened the door to “an electoral catastrophe” and that the Supreme Court of the United States had to step in to prevent “the ascension of a president of questionable legitimacy, or a constitutional crisis.”

Of course, there were very good arguments in response to Olson’s claims. Elections had always been run by states, not the federal courts, and Florida was merely doing what states had done for generations. They were following their own