The Nine [95]
The Equal Protection Clause suited Kennedy’s romantic conception of the work of the Supreme Court. The provision was the source of some of the Court’s most dramatic and historic rulings, like Brownv. Board of Education in 1954 and Reynolds v. Sims in 1964, which established the rule of “one person, one vote” in legislative districting. Kennedy’s own best-known ruling involved equal protection; in 1996, he had written for a six-justice majority in Romer v. Evans that Colorado could not ban its cities from passing laws to protect homosexuals. Kennedy was no liberal, to be sure, but neither was he afraid to use the Constitution as an engine to guarantee equal treatment of all people.
So it wasn’t surprising that Kennedy embraced equal protection more than the opaque and technical Article II grounds of Rehnquist’s opinion. Taken in its most charitable light, Kennedy’s opinion in Bush v. Gore could be said to extend the principle of “one person, one vote” from the question of how districts are apportioned before the election to the question of how votes are counted after the election. As Kennedy wrote, “The right to vote…is fundamental, and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” (Dignity is a favorite Kennedy word.) Counties had different rules about whether “dimpled chads” should be counted; individual counties sometimes changed the standard in the middle of a recount. “This is not a process with sufficient guarantees of equal treatment,” Kennedy wrote starchily.
The problem with Kennedy’s analysis, as innumerable commentators subsequently pointed out, was that no court, much less the Supreme Court, had ever before imposed any kind of constitutional rule of uniformity in the counting of ballots. Most states, including Florida, used different voting technologies in a single election. Kennedy was right that the recount might have produced inconsistencies and anomalies. But he was wrong on the larger, far more important point. A recount would have been more accurate than the certified total. The Court’s opinion preserved and endorsed a less fair, and less accurate, count of the votes.
O’Connor realized the problems with Kennedy’s equal protection analysis. Even at the oral argument, she raised some of them herself in her final questions for Olson, who had emphasized the difficulty of having “different standards from county to county.” O’Connor replied, “Well, there are different ballots from county to county, too, Mr. Olson, and that’s part of the argument that I don’t understand. There are machines; there’s the optical scanning. And then there are a whole variety of ballots; there’s the butterfly ballot that we’ve heard about and other kinds of punch card ballots. How can you have one standard when there are so many varieties of ballots?”
Still, in the end, O’Connor discounted her own apt summary of the issue. Notwithstanding her recognition of the problems with the equal protection argument, O’Connor decided to sign on. But she did so in characteristic fashion. Her position was really a version of Breyer’s—that the process just didn’t sound fair, and it needed to be stopped. To O’Connor, equal protection was a more moderate-sounding way of doing it than Rehnquist’s Article II approach. But unlike Kennedy, O’Connor had an aversion to grand pronouncements; she liked opinions narrowly tailored to the facts before the Court, and that was especially true of Bush v. Gore. She didn’t want to be making a lot of new law that might come back to haunt the Court in future cases. So late on Tuesday morning, December 12, as Kennedy’s opinion was starting to be put into final shape, O’Connor told Kennedy she wanted it clear that this opinion would not be creating a whole new set of rights and regulations for elections.
Kennedy responded by adding what became the most notorious sentence in the opinion—indeed,