The Nine [91]
Inside the building, the clerks were all id—consumed by rage. Each side was thinking the same thing about the other: They’re trying to steal the election. Bad as relations had been earlier in the year—and earlier in the week—things were far worse now.
As for Stephen Breyer, he was still all superego. Sure, things looked bad now, but logic—his logic—would prevail. He never gave up hope, not on this case or any other. True, a majority of the Court had granted a stay—which meant, under the legal standard, that it was “likely” that they would also rule for Bush on the merits of the case. But that didn’t settle the issue, at least not for Breyer. He had an almost messianic belief in the power of reason, and he never despaired about the ability of his colleagues to see the light—or his own ability to persuade them to see it.
Besides, Breyer wasn’t so far from the conservatives on Bush v. Gore. As a former professor, Breyer could talk the language of legal doctrine and rhetoric as well as anyone, but he also had a bit of the pol in him, too. And Breyer the pol didn’t like what the Florida Supreme Court had done. To him, the justices in Tallahassee looked like they were trying too hard to help Gore. Worse, Breyer thought their failure to set a standard for the recount made their motives even more suspect. He didn’t particularly care if one described the problem as one of due process or equal protection or any other legal category. He thought what the Florida justices had done didn’t pass the smell test, and that was what mattered to him.
But Breyer had a simple solution: remand the case back to the Florida Supreme Court, order those justices to set a clear standard for the whole state, and then recount the votes. Breyer loved compromise—and he thought this was a good one.
So, on Sunday, Breyer sent his law clerks out on reconnaissance missions to identify potential converts from the majority. There were really only two candidates. Publicly and privately, Rehnquist, Scalia, and Thomas had made their positions clear. They were outraged by what the Florida justices had done, and they wanted to bring the election to a close. There was no chance they would change their minds.
Breyer looked to O’Connor and Kennedy. With O’Connor, on this occasion, Breyer made the same mistake that so many others did about her jurisprudence. Just because she was usually in the middle didn’t mean that she had trouble making up her mind. And O’Connor had made up her mind about Bush v. Gore—firmly. She thought Bush should win, the case as well as the election. If there was anything O’Connor had learned growing up on a remote ranch, it was self-sufficiency; people had no right to blame anyone else, including the government, for their own mistakes. She had convinced herself that the root of the issue in Florida was simply that some voters hadn’t figured out how to cast their ballots the right way. In her view, it wasn’t the job of election officials—or the courts—to puzzle over the true meaning of ambiguously marked ballots. If the voters didn’t bother to learn how to vote correctly, the state shouldn’t try to figure out what these hapless souls meant to do. As for the Florida Supreme Court, those justices just looked like a bunch of Democratic hacks to O’Connor.
Never mind that Florida law called for vote counters to determine the intent of the voters—or that state law also empowered the Florida courts to make that process work. (The Florida courts once ordered a county to count the ballots of voters who used a pen, rather than the required number 2 pencil, to mark their ballots.) Never mind, too, that many ballots were incomplete because of defective voting machines, not incompetent voters. O’Connor had simply run out of patience. In part, she was responding to her perception of the public mood. She thought that the American people were fed up with the whole controversy and, like her, wanted it over. (In fact, polls showed only a slight majority