The Nine [86]
The fact that law clerks draft most opinions has given rise to several misimpressions, particularly on the part of the clerks themselves. Because they have this responsibility, many clerks think they are more important than they are. Supreme Court opinions are stylized documents—statements of facts followed by legal analyses—in a format that changes little from case to case. In general, only a small part of each opinion has any lasting significance, and the justices themselves monitor that section with care. Once Rehnquist became a justice, he developed a very different conception of the power of the law clerks. With appealing candor, Rehnquist used to say that he felt bound less by the footnotes than by the texts of prior opinions because the clerks usually wrote the footnotes. Most important, the justices themselves—alone—decide how to vote, and the votes matter more than anything else.
Still, the clerks give the institution a jolt of new energy each year and, in a way, set the tone in the building. O’Connor liked Arizonans, Rehnquist tennis players; Ginsburg favors musicians, Souter quirky intellectuals. Year by year, however, the chemistry varies. In 1999–2000, the term before the election, everyone got along pretty well, though there was one notorious incident when a clerk pushed another into one of the Court’s fountains. During the following year—which included the recount controversy—the atmosphere was sour from day one. More than in most years, the justices on the left—especially Stevens, Ginsburg, and Breyer—had very liberal clerks, and across the ideological divide the clerks were similarly fevered in their views. By the time the Court decided the first election case, the mood inside the building was poisonous. Still, once the decision in Bush v. Palm Beach County Canvassing Board was rendered, it seemed like the Court had seen the last of the election of 2000; the justices’ bland opinion appeared certain to be their final word on the subject.
But the fight in Florida continued. Gore’s “contest” of the certified election results had gone before Judge N. Sanders Sauls in Tallahassee. Sauls was known as one of the worst judges in the county—petty, vindictive, and reactionary; in 1998, the Florida Supreme Court had even threatened to demote him because of “the continuing disruption in the administration of justice” on his watch. The assignment of Sauls turned out to be a perverse kind of good luck for Gore.
His conduct of the trial, entitled Albert Gore, Jr. v. Katherine Harris, lived up to his reputation. Sauls’s opinion, which was rendered in the late afternoon of Monday, December 4, was brief and shoddy. He admitted that “the record shows voter error, and/or less than total accuracy” in the Florida voting machines but found no “reasonable probability that the statewide election result would be different” if the votes had been correctly counted. By nightfall, the Gore lawyers had appealed the case back to the Florida Supreme Court, which had once more become Gore’s only hope.
Again, Florida law appeared to be on Gore’s side. It was clear that there were major errors in the counting of ballots in Florida; it was clear, too, that a hand recount of the ballots would be more accurate. But Judge Sauls had simply assumed that a recount would make no difference.
The lawyers returned to the Florida Supreme Court on the morning of Thursday, December 7. The Bush forces were projecting an air of inevitability about the result. Baker and other top aides did not even show up for the argument, their absence sending the message that the legal proceedings no longer mattered. But at least some of the justices thought that Sauls had blundered badly—and that the votes still needed to be counted. The key issue from the beginning had involved the undervotes.
At first, one of Bush’s strongest arguments had been that checking the undervotes in only four counties