The Nine [96]
In other words, the opinion did not reflect any general legal principles; rather the Court was acting only to assist a single individual—George W. Bush. That was not what Kennedy meant, but that was what he wrote. The sentiment amounted to a natural consequence of the Court’s misbegotten encounter with the 2000 election. The business of the Supreme Court is to take cases that establish principles of general application. But as Kennedy’s sentence all but conceded, there was no general principle in Bush v. Gore—only a specific designation of the winner of one election. More than any other, this sentence invited skepticism about the majority’s true motives in the case.
By midafternoon on Tuesday, as the four justices in the minority circulated their dissenting opinions, tempers grew even shorter. Ginsburg had devoted her professional career to the use of the Equal Protection Clause of the Fourteenth Amendment, and it galled her to see that provision perverted by Kennedy’s opinion. In a late draft of her dissent, Ginsburg drew on certain early press reports about the black vote in Florida to suggest in a footnote that, if there was any equal protection violation by the state, it was more likely by state and local authorities than by the Florida Supreme Court. The footnote sent Scalia into a rage, and he replied with a memo—in a sealed envelope, to be opened only by Ginsburg herself—accusing her of “fouling our nest” and using “Al Sharpton tactics.” Ginsburg backed down and removed the footnote.
Still, the cumulative effects of the dissents worried Kennedy and O’Connor. They needed to show that their views were not as outlandish as the dissenters made them seem. So they decided to seize on the fact that Souter’s and Breyer’s opinions (which Stevens and Ginsburg joined in substantial part) said the case should be remanded to the Florida Supreme Court for the setting of a standard. Kennedy wrote, “Eight Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. The only disagreement is as to the remedy.” The statement was borderline disingenuous. In truth, the main point of Stevens’s, Souter’s, and Breyer’s opinions was that the recounts should continue, not that they had “problems.”
Stevens was already in Florida, but his clerks screamed at Kennedy’s clerk that the sentence distorted Stevens’s opinion. (In the confusion of the moment, they actually yelled at the wrong clerk, not the one who had responsibility for Bush v. Gore.) In response to the tirade from the Stevens chambers, Kennedy changed the reference to “Seven Justices.” Souter and Breyer would have been within their rights to protest as well, but they decided not to bother. That was a mistake. As a result of this sentence, as Kennedy intended, Bush v. Gore is often referred to by its supporters as a 7–2 case. In truth, it was never anything but 5–4.
The crisis of Bush v. Gore came upon the Court so quickly that the normal flow of business continued unabated, sometimes with comic results. At about nine in the evening on Tuesday, as the last of the opinions were being proofread before being sent to the printer in the basement, a court of appeals law clerk named Anil Kalhan showed up in advance of an interview with O’Connor that was scheduled for the next day. Kalhan thought he would visit friends who were already clerking. But his arrival outraged several other law clerks, who thought that an outsider like Kalhan could not be trusted to keep the result in Bush v. Gore secret. Some suggested, in apparent seriousness, that Kalhan be “detained,” so he could neither leave nor call outside the building. In any event, no one told Kalhan the result, and he drifted into one of the conference rooms where televisions had been set up to watch