The Nine [97]
Over the course of the day, the usual crew of about a dozen regulars in the Supreme Court pressroom had been joined by about fifty other reporters. At 9:40 p.m., Ed Turner, the Court’s deputy public information officer, entered the room and announced, “We’re going to make a line.” He read out the names of the permanent members of the Supreme Court press corps, and they dutifully queued up in the marble hallway. The newcomers stacked up behind them. At 9:52, the large cardboard boxes of opinions appeared, and the line moved at the nervous, half-running pace of paratroopers jumping out of a plane. Members of the public information staff had arranged for reporters to make a quick exit to the street through the door of the Supreme Court gift shop. The television reporters sprinted across the plaza to their camera positions on the First Street sidewalk.
Flipping madly through the pages, the correspondents struggled to make sense of the ruling. Because of the rush, the clerk’s office did not prepare a summary, which is customary at the beginning of all Supreme Court opinions. The journalists’ confusion was understandable, as the Court’s chaotic process was reflected in its finished product. Its opinion, largely written by Kennedy, was again labeled per curiam, “by the court,” which was the designation the justices usually used for uncontroversial rulings. Rehnquist insisted on its use here because the final opinion of the Court had been jointly assembled and the phrase would give a pretense of unanimity to the Court’s action. The end of the per curiam stated that the case was “remanded for further proceedings not inconsistent with this opinion.” That was a familiar phrase in the Court’s jurisprudence, but its meaning was, at first, unclear in the context of Bush v. Gore. Did it mean the recounts could continue? Foggy thinking by the Court had produced muddy writing, but closer parsing eventually showed that the answer was no.
Inside the Court, televisions had been set up in a pair of nearby conference rooms for the law clerks. The liberals migrated to one gathering, the conservatives to the other. Not surprisingly, the two rooms split close to evenly, like the rest of the country on this night. The liberals had Thai food and beer; the conservatives pizza and Scotch. They were unanimous only in their hooting derision for the television reporters. None of the justices came to watch; instead they made their way to their cars and drove home.
It had been at least twenty-five years since the nation turned its collective attention to the Supreme Court to resolve a question of such importance. In 1974, the justices had risen to the occasion when, in United States v. Nixon, they unanimously ordered the president to turn over the White House tapes and, in a larger sense, comply with the rule of law. Here, in a moment of probably even greater significance, the Court as an institution and the justices as individuals failed. Indeed, their performance on this case amounted to a catalog of their worst flaws as judges.
In one respect, though, the Court received unfair criticism for Bush v. Gore—from those who said the justices in the majority “stole the election” for Bush. Rather, what the Court did was remove any uncertainty about the outcome. It is possible that if the Court had ruled fairly—or, better yet, not taken the case at all—Gore would have won the election. A recount might have led to a Gore victory in Florida. It is also entirely possible that, had the Court acted properly and left the resolution of the election to the Florida courts, Bush would have won anyway. The recount of the 60,000 undervotes might have resulted in Bush’s preserving or expanding his lead. The Florida legislature, which was controlled by Republicans, might have stepped in and awarded the state’s electoral votes to Bush. And if the dispute had wound up in the House of Representatives, which has the constitutional duty to resolve controversies involving the Electoral