The Nine [84]
By the time of oral argument in Bush v. Palm Beach County Canvassing Board, it was clear that the Court should not have taken the case in the first place. The relevant legal issue concerned Gore’s “protest” of the election results—his demands for recounts in three remaining counties before Harris certified the election results as final. During the week that the Supreme Court case was pending, only one county of the three actually completed its recount, and in Broward, Gore netted 567 additional votes. In Miami-Dade, Bush supporters staged what became known as the “Brooks Brothers riot,” and the canvassing board shut down its recount. In Palm Beach, the canvassing board tried to finish counting its votes but missed Harris’s deadline. In any event, on Sunday night, November 26, in a solemn, nationally televised ceremony, Harris did certify the election, with Bush the winner by 537 votes. The Gore forces promptly filed a “contest,” which was the next legal procedure, after the precertification “protest,” to dispute the result of an election.
So on the morning of Friday, December 1, the justices appeared from behind their massive red curtain to hear an argument about an election “protest” that was, by the standards of this election, ancient history. Simply put, the issue before the justices didn’t matter anymore. Still, the mood in the courtroom was chipper, almost giddy. The process in Florida had been so bizarre and unpredictable that there was a sense—a hope—that the Court might put it all right.
In the chair closest to the bench, the seat of honor for spectators, was the stooped figure of Byron White. The former football star looked wizened and unwell, but he, like everyone else who had the chance, didn’t want to miss this (apparently) once-in-a-lifetime event.
The argument, however, quickly bogged down into a discussion of minutia. As revealed by their questions to Ted Olson, O’Connor and Kennedy seemed to be having a case of buyer’s remorse, regretting that they had ever granted certiorari. As O’Connor put it, “If it were purely a matter of state law, I suppose we normally would leave it alone, where the state supreme court found it, and so you probably have to persuade us there’s some issue of federal law here.”
Kennedy said, “We’re looking for a federal issue.” The questions for Gore’s lawyer, Harvard Law School professor Laurence Tribe, were also vigorous, but mostly the justices seemed to be looking for a graceful exit.
The justices’ conference took place on the same Friday afternoon as the argument. The justices did not take a formal vote, as they customarily did, but instead resolved to try to come up with some unanimous decision. They knew that in such a politically polarizing moment, the Court would send a comforting signal by uniting around a single result. Anyway, the stakes were fairly low. Because the protest was already over, there wasn’t a great deal that the Court could do. The conservatives, especially Scalia, were outraged that the Florida Supreme Court seemed to be rewriting the state election code. He wanted to slap that court down, at least rhetorically. O’Connor, too, didn’t like the way the Florida justices appeared to be freelancing—and helping Gore. The more liberal justices, especially Stevens, thought that Florida was merely doing what state courts always did—interpreting state law. Since the “contest” of the election was already under way, Stevens and his allies thought they should just dismiss the appeal and let the process in Florida run its course.
When the conference reached an ambiguous result, Rehnquist often drafted his own opinion and then tried to bring everyone around. Even with a case of this magnitude, the phlegmatic chief didn’t actually write this one himself but instead assigned a law clerk, Luke Sobota, to compose the first draft.
Rehnquist resolved to “vacate”—that is, overturn the decision of the Florida