The Nine [83]
Many litigants before the Supreme Court ask for speedy treatment, but the Court almost never grants it. Particularly during the later Rehnquist years, when the chief put such a premium on efficiency, the Court rarely deviated from its customary schedule. The rhythm of its deliberations on cases seldom varied. The justices rarely even saw a case before all the briefs were submitted by both sides, and then they generally took weeks, if not months, to resolve it.
But in the matter of the election in 2000, the justices departed from their usual rules. There was no order, no regularity, no procedure. The justices decided them on the fly. When an old friend called Stevens to ask for a ticket to the argument of the case, the senior justice answered dryly that he would have to follow the usual procedure on seating. “And I think that’s the only procedure that’s going to be followed around here,” he added.
Most of the justices were not even in the Court building on Wednesday, November 22, so their clerks and the Court staff had to track them down to give them the Republicans’ briefs. Many of the law clerks had already left for the Thanksgiving holiday, so the decision on Bush’s cert petition went to the justices alone. And they did not wait to hear from the Democrats to issue their decision.
As the justice for the Eleventh Circuit, Kennedy coordinated the rulings, which came in on Thanksgiving Day, November 23, and the following morning, Friday, November 24. The votes were:
Rehnquist—grant
Stevens—deny
O’Connor—grant
Scalia—grant
Kennedy—grant
Souter—deny
Thomas—grant
Ginsburg—deny
Breyer—deny
Since only four votes were needed to grant a petition, the Republicans had one more vote than necessary. The Supreme Court would take the case.
Around midday on Friday, Kennedy summoned one of the lawyers who worked in the clerk’s office. These attorneys were career professionals (not to be confused with the individual justices’ law clerks, who served for only a year) and tended to be especially wise about the ways of the Court and skillful in predicting what the justices would do. The lawyer Kennedy called was so sure that Kennedy would simply say the Court had denied certiorari that he didn’t even bring a pen and paper to the justice’s chambers. He could remember a single word: deny.
But Kennedy’s first words to the lawyer were, “I hope you brought a pad.”
The Court had done more than simply grant the writ of certiorari and the petition for expedited consideration. The justices also accepted two of the three “questions presented” in the Republicans’ cert petition. They were willing to hear the Bush team’s arguments on whether Florida had violated federal law or Article II of the Constitution. But they did not think the argument that Florida had violated equal protection merited further consideration.
More important, though, as Kennedy dictated the Court’s order, which was largely his own work, the five justices in favor of cert had agreed on a schedule that was even faster than the one the Republicans had proposed. This alone was virtually without precedent. The justices rarely agreed to accelerate their schedule at all, but they never proposed a timetable that was even quicker than what the parties sought. Olson had asked for oral argument on December 5; Kennedy gave it to him on December 1.
Kennedy was miffed that the lawyer from the clerk’s office had not come