The Nine [92]
On Sunday, a few liberal clerks thought O’Connor might have to leave the case. As David Margolick first reported, a Ginsburg clerk whose brother worked for the Wall Street Journal learned that the paper would be disclosing in Monday’s edition the remarks O’Connor had made at the election night party at the Stoessel home. Perhaps, the liberal clerks wondered, she would now recuse herself from the case, because she had indicated so clearly that she wanted Bush to win the election. But the clerks misjudged O’Connor—and the law. O’Connor’s comments at the party, while peculiar, hardly displayed a bias in this particular lawsuit, and anyway, there was no way that she was going to walk away from a case of this magnitude.
Kennedy was a different story—perhaps. It had not been an easy term for him. A few weeks before the election, he had been assigned the opinion in Legal Services Corp. v. Velazquez, a case where he joined the four liberals—Stevens, Souter, Ginsburg, and Breyer—in striking down a law that barred legal services lawyers from challenging the constitutionality of welfare laws. (Congress had passed the law to halt what it regarded as liberal political activism by government-funded lawyers.) Kennedy had filled his first draft with such flowery language about the First Amendment and the importance of lawyers that he faced a rebellion from his colleagues. They wanted him to tone down his meaningless rhetoric. Kennedy did, reluctantly. Now, in Bush v. Gore, the same quartet of liberals needed Kennedy’s vote, this time for incalculably higher stakes.
For the justices, Sunday, December 10, was mostly quiet. A few clerks came into the building to wait for the briefs, which were sent by messenger to the justices’ homes. The full Court didn’t gather again until Monday morning at eleven, when they would hear from the lawyers in the election cases for the final time.
It had been just ten days since the first argument before the justices, but the courtroom seemed like an entirely different place on December 11. The cheerful buzz of December 1 had been replaced by a sullen hum. (Byron White did not return to watch the second argument. A few weeks later, he closed his office in Washington and moved back to Colorado. He died in 2002 at the age of eighty-four.) At the first argument, in the Palm Beach case, it had seemed possible that the Supreme Court would rise above the political sniping that had characterized the battle of Florida. But halting the recount made the justices look like another set of partisans. For the Court, any pretense of impartiality, much less nobility, had vanished.
Having won the stay, Ted Olson had now, in effect, to run out the clock. If he could stay out of trouble during oral argument, he would probably win the case (and the election) for his client. But Kennedy surprised him with the first question: “Can you begin by telling us our federal jurisdiction? Where’s the federal question here?” This was the point the Gore lawyers had been making all along—that the election was fundamentally a state matter, which should never have wound up before the U.S. Supreme Court. Olson replied evenly that the Florida Supreme Court had violated Article II of the Constitution, which said state legislatures, not state courts, must make the rules for presidential elections. But Kennedy came back with another of Gore’s arguments: “To say that the legislature of the state is unmoored from its own constitution and it can’t use its courts…has grave implications for our republican theory of government.”
Was Kennedy switching sides? Not necessarily, because a few moments later, he jumped in with what he apparently regarded as a better argument