The Nine [89]
From the beginning, the core of the Bush argument was that the Florida Supreme Court had created an anarchic mess in an effort to let the Democrats steal the election. But on Saturday morning, judges and county workers of all political persuasions were refuting that proposition. Quietly, efficiently—to be sure, imperfectly—they looked at the ballots and counted the votes. By noon that day, Terry Lewis’s deadline of the following afternoon looked like a reasonable target for completing the recount.
As it happened, one of O’Connor’s clerks—one of the few who had good relations with both his conservative and his liberal colleagues—was throwing a party on Friday night at a bar in the Adams Morgan neighborhood of Washington. Many law clerks stopped in for a few drinks before returning to work to read Bush’s brief, which they knew would be coming.
Back at the Court, alcohol made a contentious environment even more volatile. In the chambers of the conservatives, there was a raw, consuming anger at the Florida Supreme Court. The justices in Tallahassee had never responded to the questions that the justices in Washington had asked in their Palm Beach opinion of December 4. Bad enough that they were trying to steal the election for Gore, the clerks on the right were saying, but they were defying the U.S. Supreme Court as well. How dare they jump back into the election without first responding to their superiors on the high court?
Up to this point, the Court had managed to hang on to a strained public unanimity. The only opinion in the case so far had been the brief per curiam in Palm Beach. But the veneer of bipartisanship disappeared on Friday night. Scalia was first to respond to the Bush brief, and his anger was searing. He thought the Florida court was contemptuous, defiant, and out of control; it had to be stopped. In a memo to the other justices, he said he didn’t just want to grant Bush’s request for a stay of the recount. Scalia wanted to issue a stay, grant certiorari on Bush’s appeal, and summarily reverse the Florida Supreme Court—all by Saturday morning and all without hearing any oral argument at all. The conservative chambers were coordinating overnight, and each one took a different part of the argument—Article II, statutory, equal protection.
By late on Friday, there were five votes for a stay—Rehnquist, O’Connor, Scalia, Kennedy, and Thomas. For a while that evening, it even looked like the Court might adopt Scalia’s view and reverse the Florida decision without an argument, but Stevens, the senior justice in the minority, prevailed upon Rehnquist at least to schedule a conference on the issue for Saturday. Reluctantly, the chief agreed. At first, Rehnquist put the conference down for 1:00 p.m., but Scalia, who was itching to shut down the recount as soon as possible, convinced the chief to move it up to 10:00 a.m.
In a brief, uncomfortable meeting on Saturday, December 9—as the vote counting was beginning in Florida—the justices gathered in the chief’s conference room. Scalia still wanted to reverse without argument, and so did Rehnquist and Thomas. O’Connor and Kennedy were willing to hear the parties in the case, but they maintained their vote in favor of a stay. The four others—Stevens, Souter, Ginsburg, and Breyer—dissented. Again, they made the point that had come up in the first case. Why not let the vote count proceed? Maybe Bush would win anyway. But the majority wouldn’t budge. Rehnquist drafted an order of just one page. Stay granted. Oral argument on Monday, December 11. Stevens said he would be filing a dissent.
Back in his chambers, the elderly Chicagoan sat in front of the keyboard and tapped out three long paragraphs. Before deciding to make a unanimous Court in Palm Beach, Stevens had prepared a dissent in that case,