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Supreme InjusticeHow the High Court Hijacked Election 2000$

Alan M. Dershowitz

Print publication date: 2003

Print ISBN-13: 9780195158076

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0195158075.001.0001

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The Inconsistency of the Majority Justices With Their Previously Expressed Views

The Inconsistency of the Majority Justices With Their Previously Expressed Views

Chapter:
(p.121) 4: The Inconsistency of the Majority Justices With Their Previously Expressed Views
Source:
Supreme Injustice
Author(s):

Alan M. Dershowitz (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/0195158075.003.0005

Abstract and Keywords

Aims to demonstrate that, during the (Bush vs Gore) US presidential election of 2000, by any reasonable standard of evaluation, the majority justices of the US Supreme Court failed to test the US constitutional system in ways that it had never been tested before, and did so not because of incompetence, but because of malice aforethought. Contrasts the prior decisions and writings of the particular majority justices with the opinions that they joined in this case; the dramatic discrepancies found raise troubling questions. Moves from this concrete evidence to a more speculative consideration of what may have motivated these inconsistencies. The different sections of the chapter look first at the decisions of Justice Antonin Scalia, Justice Sandra Day O’Connor, Justice Anthony Kennedy, Chief Justice William H. Rehnquist, and Justice Clarence Thomas. The following speculative sections first ask generally why each justice behaved as they did, and then go on to devote separate sections on the motives of each of the five justices.

Keywords:   George W. Bush, Bush vs Gore, Chief Justice William H. Rehnquist, Al Gore, Justice Anthony Kennedy, Justice Antonin Scalia, Justice Clarence Thomas, Justice Sandra Day O’Connor, justices’ decisions, justices’ opinions, justices’ writings, speculative motives, US constitution, US justices’ motives, US presidential election 2000, US Supreme Court, USA

In Chapter 2, I demonstrated the general inconsistency between the majority opinion in Bush v. Gore and the prior rulings of the Supreme Court. In this chapter, I will contrast the prior decisions and writings of the particular majority justices with the opinions they joined in this case. These dramatic discrepancies raise troubling questions. I will then move from this concrete evidence to a more speculative consideration of what may have motivated these inconsistencies. Let me begin with the justice who is widely regarded as the intellectual and moral leader of the majority, Antonin Scalia.

(p.122) Justice Scalia

  • The Supreme Court of the United States does not sit to
  • announce “unique” dispositions.

—United States v. Virginia

  • Our consideration is limited to the present circumstances.

—Bush v. Gore

Throughout the Court's history, justices have approached their role with varying levels of commitment to an overarching judicial philosophy or jurisprudence. Some simply decide cases as they are presented, with no reference to a particular legal theory. Their goal, as Oliver Wendell Holmes once put it, is simply to solve the problem before them. The criterion by which such judges seek to have their work evaluated is whether they have been true to the law and fair to the litigants. They do justice on a case‐by‐case and issue‐by‐issue basis. The judicial philosophies of such “retail” judges can be discovered only over time, by looking back at the totality of their work product and tying the divergent cases together by strands of philosophical commonality. Some of these justices appear to develop a consistent jurisprudence, while others appear to rule on a more or less ad hoc basis.

At the other extreme, there are justices who come to their job with a coherent and pervasive judicial philosophy that animates their decisions and which they articulate in many of their cases. These “wholesale” justices believe that the role of the Supreme Court is to establish general precedents binding on all other courts, and that it is the job of the lower courts to administer justice on a retail basis, applying these general precedents to particular cases. They do not think the Supreme Court should be in the business of deciding individual cases that require unique dispositions based on the totality of the circumstances.

(p.123) The embodiment of the second type of justice is Antonin Scalia, who has expressed his views—perhaps more extensively and intelligently than any justice in recent history—about the proper manner by which the Supreme Court should administer justice. As with any complex philosophy, it is difficult to summarize Scalia's jurisprudence briefly without losing nuance, but Scalia himself has provided a fair summary in his writings over the years. In a 1996 case, he wrote:

The Supreme Court of the United States does not sit to announce “unique” dispositions. Its principal function is to establish precedent—that is, to set forth principles of law that every court in America must follow. As we said only this Term, we expect both ourselves and lower courts to adhere to the “rationale upon which the Court based the results of its earlier decisions.” . . . That is the principal reason we publish our opinions.1

In a 1989 law review article, he explained how this approach to adjudication imposes “constraints” that are designed to hedge in the policy preferences of individual justices:

[W]hen, in writing for the majority of the Court, I adopt a general rule, and say, “This is the basis of our decision.” I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my political or policy preferences regarding the outcomes are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle. In the real world of appellate judging, it displays more judicial restraint to adopt such a course than to announce that, “on balance,” we think the law was violated here—leaving ourselves free to say in the next case that, “on balance,” it was not. It is a commonplace that the one effective check upon arbitrary (p.124) judges is criticism by the bar and the academy. But it is no more possible to demonstrate the inconsistency of two opinions based upon a “totality of the circumstances” test than it is to demonstrate the inconsistency of two jury verdicts. Only by announcing rules do we hedge ourselves in. (Emphasis added)2

In other writings, he has argued persuasively that the doctrine of stare decisis—fidelity to precedent—is central to the role of the justice for several interrelated reasons. First, by requiring the justice to build on the past—to make every decision a part of an ongoing process of articulating and applying the law—the doctrine of stare decisis precludes the justice from exercising arbitrary discretion and indulging his own political preferences. Second, by making the justice look to the future—to the precedential effect this decision will have on subsequent cases—it commits the justice to formulating general principles that will govern his decisions in cases whose political implications cannot now be known. Third, by requiring the decision to be based on objective principles of general applicability, rather than the necessarily subjective “totality of the circumstances,” the doctrine of fidelity to precedent makes it harder for the judge to implement any personal preferences he may harbor. Fourth, stare decisis also promotes predictability, which is essential to any fair legal system. As Scalia wrote in 1989:

[There is an] obvious advantage of establishing as soon as possible a clear, general principle of decision: predictability. Even in simpler times uncertainty has been regarded as incompatible with the Rule of Law. Rudimentary justice requires that those subject to the law must have the means of knowing what it prescribes. It is said that one of emperor Nero's nasty practices was to post his edicts high on the columns so that they would be harder to read and easier to (p.125) transgress. As laws have become more numerous, and as people have become increasingly ready to punish their adversaries in the courts, we can less and less afford protracted uncertainty regarding what the law may mean. Predictability, or as Llewellyn put it, “reckonability,” is a needful characteristic of any law worthy of the name.3

Predictability also requires that the legitimate expectations of the public not be disappointed by changing the law without good reason. Scalia explained why in a 1995 concurring opinion:

The doctrine of stare decisis protects the legitimate expectations of those who live under the law, and, as Alexander Hamilton observed, is one of the means by which exercise of “an arbitrary discretion in the courts” is restrained. . . . Who ignores it must give reasons, and reasons that go beyond mere demonstration that the overruled opinion was wrong (otherwise the doctrine would be no doctrine at all).4

In addition to these constraints on a justice—respect for precedent, announcing general principles, and eschewing unique dispositions—Scalia is well known for his commitment to the text of the Constitution and his reliance on “unbroken national traditions” in interpreting such provisions as the equalprotection clause of the Fourteenth Amendment. He summarized these views in United States v. Virginia (1996):

[I]n my view the function of this Court is to preserve our society's values regarding (among other things) equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees. For that reason it is my view that, whatever abstract tests we may choose to devise, they cannot (p.126) supersede—and indeed ought to be crafted so as to reflect—those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts. More specifically, it is my view that “when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.”5

These are among the principles that Antonin Scalia not only insists he lives by as a justice, but demands of all other justices. It was these principles that brought him to the attention of those responsible for his appointment, first to the Court of Appeals for the District of Columbia Circuit and then to the United States Supreme Court. These are the principles he continues to espouse in lectures and decisions even following Bush v. Gore.

In joining the majority opinion in Bush v. Gore, Antonin Scalia violated every single one of these salutary principles to enable him to vote his political preferences. Not only did he violate these rules, but he did so specifically in order to avoid their intended prophylactic effect.

Consider Scalia's admonition against the Supreme Court's announcing “unique” dispositions rather than performing its “principal function” of establishing precedent—that is, setting forth principles of law that every court in America must follow, based on the “rationale . . . of its earlier decisions.” It would be difficult to imagine an opinion more inconsistent with these principles than the majority opinion in Bush v. Gore. The majority went out of its way to emphasize that its disposition in this case was unique, based on the totality of the circumstances and not on principles of general applicability to future cases: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

(p.127) First of all, this claim is utterly unconvincing as a matter of fact. Election cases present no greater complexities than many other types of cases, such as those involving the death penalty, affirmative action, or the rights of the indigent. Indeed, the majority in Bush v. Gore focused on the noncomplexity of the “thing” at issue in this case—a simple ballot with “marks or holes or scratches” on it. Moreover, even if election cases presented a unique set of complexities—not subject to general principles of broad applicability—that very uniqueness would be a good reason why Scalia would normally refrain from having the Supreme Court decide the case, since unique dispositions leave the justices who joined them free to say precisely what Scalia believes justices should not feel free to say: namely, that “on balance, we think the law was violated here,” but in the next case, the “totality of the circumstances” may seem different and we will therefore be free to decide it differently without being accused of “inconsistency.” Yet that is precisely what the majority justices left themselves room to do in the next case after deciding this one on their political preferences.

Moreover, Bush v. Gore does not build on the past or fit into any clear line of precedent. Indeed, as I have shown in Chapter 2, it is dramatically at odds with prior equal‐protection precedents. And the majority gave no reasons for ignoring these precedents—precedents it will almost certainly continue to follow in future cases. These precedents in no way constrained the justices from indulging their “political or policy preferences” in this one important case.

Nor did the decision in Bush v. Gore satisfy Scalia's criteria of “predictability” and “reckonability.” If it is true, as I have argued, that the one hundred most experienced Court watchers could not have predicted this decision (without knowing the names or party affiliations of the litigants), then the decision did not possess this “needful characteristic of any law worthy of the name.”

(p.128) Finally, and most troubling, are the merits of the equalprotection decision itself and the inconsistency between the result reached and Scalia's own criteria for finding a violation of the equal‐protection clause. Scalia has repeatedly said that his job is not to “revise” the equal‐protection clause, nor to “prescribe” on his own authority “progressively higher degrees” of equality. The equal‐protection clause, in his view, cannot “supersede . . . those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts.” He has argued, specifically, that when a practice “not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.”

The Florida standard for hand‐counting votes—the clear intent of the voter—fits precisely into Scalia's criteria for a law or practice that should not be struck down: It is not expressly prohibited by the text of the Constitution, it bears the endorsement of many states over a long period of time, and it has never previously been challenged. Yet Scalia voted to strike it down, despite his previous strong view that there is no proper basis for striking down such a standard. Nor has Scalia ever before demanded perfection for a state legislative standard to withstand constitutional scrutiny: “[T]he value of perfection in judicial decisions should not be overrated.”6 “This is a world in which nothing is flawless,” he has said, citing “G. K. Chesterton's observation that a thing worth doing is worth doing badly”7—except, it seems, if that thing is hand‐counting votes that may give victory to Scalia's political opponents. In another case, Scalia presciently warned that if the Supreme Court tries to “inject itself into every field of human activity where irrationality and oppression may theoretically occur,” it “will destroy itself.”8

Nor was Chief Justice Rehnquist's concurring opinion based (p.129) on Article II of the Constitution, in which Scalia joined, consistent with Scalia's previously expressed philosophy. It, too, was limited to the unique facts of this case involving a presidential election. It announced no general principles and was inconsistent with the deference usually accorded state courts in the interpretation of their own statutes. Moreover, it failed to acknowledge the existence of long‐established Florida law—particularly the wrong‐pencil case described in Chapter 2—that undermined its implication that the Florida Supreme Court had changed the law after the election to ensure a Gore victory. Most fundamentally, it omitted any reference to the most important—and highly relevant—precedent in Supreme Court history, Marbury v. Madison, a case that is entirely inconsistent with the central assertion in the Rehnquist opinion: that under Article II the text of a statute must be given “independent significance” beyond “its interpretation by the courts of the state.” This concept—that any state statute can be self‐defining and somehow exist in a realm independent of the long‐accepted mechanism for interpreting it—is so radically at odds with, and alien to, the American history of judicial review since Marbury v. Madison that it is difficult to reconcile it with Scalia's judicial philosophy of accepting constitutional practices that enjoy a long tradition of unchallenged use.

Additionally, the three justices, in substituting their interpretation of what the Florida legislature meant for the interpretation of the Florida Supreme Court over the years, did precisely what Antonin Scalia said it was improper for a judge to do:

The practical threat is that, under the guise or even self‐delusion of pursuing unexpressed legislative intents, common‐law judges will, in fact, pursue their own objectives and desires, extending their own lawmaking prerogatives from the common law to the statutory field.9

(p.130) Scalia might reply that this is also what the Florida Supreme Court did when it interpreted the Florida legislation. There are, however, several important differences—differences that Scalia would ordinarily acknowledge. First, the Florida interpretation predates this case and was part of a long process of interpreting Florida's election law that spanned three‐quarters of a century. The Florida Supreme Court could not be accused, as the Supreme Court now stands accused, of simply making it up for the purposes of this case and this result. Second, if the Florida legislature was in disagreement with this long‐standing interpretation, it had a remedy: It could have clarified or changed the law. Third, if the people of Florida were dissatisfied with what their state supreme court had done, they, too, had a remedy: They could employ the political processes of Florida to change the makeup of its supreme court. No such remedies are available when it is the United States Supreme Court that interprets Florida law. Finally, it is not the job of the nation's highest court to impose its theory of statutory interpretation on state court judges.

Scalia's previous writings are also inconsistent with the notion, put forward by several of the majority's defenders,10 that the decision was intended to save the nation from the “political crisis” that would have occurred if the election had been thrown into the House of Representatives, as the Constitution mandates in the event of a deadlock. In a previous case, Scalia condemned “the ad hoc approach to constitutional adjudication . . . that will make the majority of the Court happy” and said that he preferred “to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound.”11 But this sort of ad hoc approach is exactly what he took in Bush v. Gore.

Justice Scalia's dissent in yet another case could serve as an object lesson about the Florida election case: (p.131)

[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.12

But in Bush v. Gore, Scalia willingly jumped feet first into this highly political area, imposing the sort of rigid rule he had previously excoriated and forcing the banishment of the issue from the political forum.

Perhaps the most challenging test of long‐espoused philosophies arises when they come into conflict with strongly held immediate preferences. The Florida election case, with its high stakes, presented such a test to Antonin Scalia. His personal and political views strongly favored a Bush victory, while his judicial philosophy and his previously stated approach to the role of courts under our Constitution plainly favored nonintervention by the Supreme Court. Throughout his professional life, Scalia has boasted about his fidelity to principle and the subordination of his personal views to the Constitution. The over‐arching policy underlying Scalia's philosophy has been to constrain justices from imposing their own values on the nation, especially when these personal or political values are strongly held. At his confirmation hearing, Scalia said he worried about whether his decisions reflected “the most fundamental, deeply felt beliefs of our society, which is what a constitution means, [or whether], I am reflecting the most deeply felt beliefs of Scalia, which is not what I want to impose on the society.”13 Had he passed the test posed by this case, history might well have remembered (p.132) him as the man of principle he claims to be. It would have constituted his judicial profile in courage. But he failed the test, and failed it badly. His vote was entirely in consistent with the restraining rules he has claimed to live by. He ignored these rules in the Florida election case specifically in order to escape their restraints. He even lacked the courage to try to justify what he was doing by writing a separate opinion on the merits14—which he often does when he feels that his actions require explanation.15 Judged by his own standards, Scalia is guilty of precisely what he has accused others of doing: being part of a “self‐righteous Supreme Court, acting on its members' personal views of what would make a more perfect union [who] impose [their] own favored . . . dispositions.”16 His life work must be judged by what he has done, not by what he has said is the right thing to do. What he did in this case cannot be justified by any acceptable standard of judicial behavior. He peeked beneath the blindfold of justice and decided the case not on neutral principles or precedents designed to govern future cases, but rather on the basis of whom he wanted to see win this election. In doing so he violated his judicial oath to do justice “without respect to persons. . . . ”

Justice O'connor

[T]o turn these matters over to the federal judiciary is to inject the courts into the most heated partisan issues. . . . I do not believe . . . that the Framers of the Constitution intended the judicial power to encompass the making of such fundamental choices about how this Nation is to be governed.

—Davis v. Bandemer, 478 U.S. 109 (1986),

O'Connor concurring

In Chapter 2, we saw how inconsistent the majority opinion is with the prior equal‐protection rulings of the Court in general. (p.133) It is also inconsistent with the approach to equal protection specifically taken by Justice O'Connor in her prior decisions. Until she joined the majority's equal‐protection decision in Bush v. Gore, O'Connor had insisted that racial discrimination lies at the core of equal protection and that the Court should be reticent about telling states how to define equality in contexts where there is no discrimination based on suspect classifications, such as race or gender. Even in paradigmatic cases of alleged racial discrimination, she has found no violation of the equal‐protection clause in the absence of a discriminatory purpose. According to her consistent pattern of decisions in such cases, a discriminatory effect, even if proved conclusively, is simply not enough. Based on that bedrock principle, she cast the deciding vote in the 1987 case of McCleskey v. Kemp—the Georgia case that ultimately sent dozens of black defendants to execution despite compelling statistical evidence that black defendants convicted of killing white victims were far more likely to be sentenced to death than white defendants who killed black victims.17 It is sufficient to point out here that in the thirteen years between that decision and the Florida election case, O'Connor had never departed from the principle that formed the core of that ruling: that absent a discriminatory purpose—a purpose not present in Bush v. Gore—it does not violate equal protection to execute blacks under a system of capital punishment that produces a discriminatory effect.18

Yet despite the fact that discrimination against blacks lies at the historical root of the equal‐protection clause and the fact that there was not even an allegation of racial discrimination in the Florida election case, O'Connor abandoned her long‐held principles and precedents and voted to invent a new equal‐protection right—for use in this case and this election only—in order to ensure the victory of the candidate whose election she supported. She also ignored her own decision in a 1995 case holding that no equal‐protection challenge can succeed without a “showing of (p.134) individualized harm” by a specific victim or class of victims.19 In Bush v. Gore, there was no such showing, and there was no such victim or class. O'Connor's votes to grant a stay and then to end the hand count without a remand were also inconsistent with her prior decisions regarding such matters.20

Finally, as the quotation at the beginning of this section suggests, O'Connor's long‐expressed judicial philosophy—from her confirmation process until the Florida election case—stood strongly against Supreme Court intervention into political questions, especially when these questions have been decided by state courts. Until this case, she—a former state court judge—had been a champion of the powers of state courts to interpret their own laws, and she had applauded the reticence of federal courts, including the Supreme Court, to become involved with such partisan issues.21 It was this long‐held philosophy that worried Bush lawyers when the equal‐protection challenge was first proposed. As Ben Ginsberg, chief counsel for the Republicans, recalled, “[T]here was some concern about O'Connor as a former state legislator, that she might believe the Supreme Court should not intervene.”22 It turned out they had little to worry about, because O'Connor would not let her judicial philosophy get in the way of the political result she wanted in this case.

These departures from precedent are particularly damning for Justice O'Connor, because she has written so consistently and eloquently about the force of precedent.23 Of all the members of the Supreme Court who participated in the Florida election case, few have been more vocal in their support of consistency and congruence with earlier cases. She has insisted that “any departure from the doctrine of stare decisis demands special justification.”24 This is especially true of “long‐established precedent that has become integrated into the fabric of the law.” Overruling such precedent may have dire consequences for “the ideal of the rule of law.”25

(p.135) Although she almost certainly would not have joined the original decisions in such cases as Roe v. Wade and Miranda v. Arizona, O'Connor has voted to reaffirm these controversial decisions. She jointly authored the Court's majority opinion in Planned Parenthood v. Casey (1992), which emphasized the “obligation to follow precedent” unless specified conditions—for example, that a priori prior rule “has proven to be intolerable” or “unworkable”—are clearly met. She joined the Court's opinion in Dickerson v. U.S., a case decided only six months before Bush v. Gore, which said:

Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.26

O'Connor ignored these salutary principles in the Florida election case within six months of agreeing with them in the Dickerson case, joining an opinion that simply ignored precedent and created a novel equal‐protection argument that explicitly disavows any claim to establishing a precedent for future cases. Although there is a difference between expressly overruling prior precedent and silently ignoring it, the difference cuts against one of the primary principles underlying fidelity to precedent—namely, constraining individual justices from substituting their personal preferences for the institutional and historical rulings of the Court. Expressly overruling precedent requires the articulation of reasons, whereas simply ignoring it in one political case can be done with far less accountability. O'Connor ignored the dangers to the Supreme Court, and to the nation, from a Court that abandons consistency with principle and precedent—a danger about which she wrote so eloquently eight years earlier in Planned Parenthood v. Casey: (p.136)

The country's loss of confidence in the Judiciary would be underscored by an equally certain and equally reasonable condemnation for another failing in overruling unnecessarily and under pressure. Some cost will be paid by anyone who approves or implements a constitutional decision where it is unpopular, or who refuses to work to undermine the decision or to force its reversal. The price may be criticism or ostracism, or it may be violence. An extra price will be paid by those who themselves disapprove of the decision's results when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law. To all those who will be so tested by following [sic], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. From the obligation of this promise, the Court cannot and should not assume any exemption when duty requires it to decide a case in conformance with the Constitution. A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that. (Emphasis added)

She then warned about the difficulty of restoring lost trust:

It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character (p.137) of an individual, the legitimacy of the Court must be earned over time.27

The dissenting justices in Bush v. Gore couldn't have said it better.

Justice Kennedy

Non‐uniformity cannot be equated with constitutional infirmity.

—Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 41 (1991),

Kennedy concurring

The formulation of uniform rules to determine intent [is constitutionally] necessary.

—Bush v. Gore, 121 S. Ct. 525, 530 (2000)

In the days leading up to the decision, many legal experts viewed Anthony Kennedy as the justice most likely to break with the extreme right wing of the Court in Bush v. Gore. Kennedy, who was selected by President Reagan after the failed nomination of Robert Bork, is usually classified as a moderate‐conservative justice. Although he generally sides with the Rehnquist‐Scalia‐Thomas group—especially in criminal cases—he sometimes, either alone or with O'Connor, joins with Breyer, Ginsburg, Souter, and Stevens,28 especially in following established law rather than breaking new ground. He was seen, prior to this case, as far less ideological and—like O'Connor—more committed to following precedent than his fellow Reagan appointees: “He strikes those who know him as a quiet pragmatic [political and legal conservative], open to persuasion.”29 Unlike some other justices, he is regarded by experienced Supreme Court litigators as someone who will occasionally change his mind on the basis of a good argument. A lawyer who often argues before the Supreme (p.138) Court told me: “Kennedy actually uses his ears during oral argument, as contrasted with Scalia, who uses only his mouth.” At the time his nomination was under consideration by the Senate Judiciary Committee, his supporters pointed to the fact that the five hundred or so opinions he had written during his twelve years on the Court of Appeals for the Ninth Circuit “are cautiously and narrowly crafted, sticking close to precedent and avoiding sweeping statements on social issues.”30 Kennedy himself assured the senators of his commitment to the principles of judicial restraint: “The court must adhere to the text of the Constitution and the controlling statutes as they have been announced, not as the courts wish to see them applied.”31 And until this case, Kennedy had generally followed these principles.32

As already argued, neither the text of the Constitution nor the case law supported Supreme Court intervention in the Florida presidential election, and Florida was employing a standard little different from that long used in other states without challenge. Usually this combination would ensure that Kennedy would follow the course of judicial restraint, which he has long espoused. Gore's lawyers were cautiously optimistic, therefore, that despite Kennedy's Republican background, he would follow his principles and not join an unprecedented decision ending the hand count on equal‐protection grounds. Especially encouraging was the fact that Kennedy, in his years on the Court, had always insisted that “nonuniformity” in the application of broad, flexible standards—such as the clear intent of the voter—did not give rise to an equal‐protection violation.

Until the Florida election case, Justice Kennedy's views on equal protection had been similar to those long articulated by Justice O'Connor. He voted to affirm numerous death‐penalty cases against claims that capital punishment is administered in a racially discriminatory manner. He, too, has insisted that an equal‐protection claimant must show purposeful discrimination based on race (or another invidious classification such as gender (p.139) or national origin), as well as actual victimization. Moreover, Kennedy's approach has been marked by its flexibility and acceptance of wide discretion in the administration of general standards, such as voter intent. One case in particular illustrates his prior attitude toward nonuniformity in general. In voting to uphold punitive damage awards in tort cases, he cited the flexibility permitted even in capital sentencing:

Some inconsistency of jury results can be expected for at least two reasons. First, the jury is empanelled to act as a decisionmaker in a single case, not as a more permanent body. As a necessary consequence of their case‐by‐case existence, juries may tend to reach disparate outcomes based on the same instructions. Second, the generality of the instructions may contribute to a certain lack of predictability. The law encompasses standards phrased at varying levels of generality. As with other adjudicators, the jury may be instructed to follow a rule of certain and specific content in order to yield uniformity at the expense of considerations of fairness in the particular case; or, as in this case, the standard can be more abstract and general to give the adjudicator flexibility in resolving the dispute at hand.

These features of the jury system for assessing punitive damages discourage uniform results, but nonuniformity cannot be equated with constitutional infirmity.33

In that decision, Kennedy did not single out the jury as a unique institution. Instead, he generalized about all fact‐finding bodies, specifically comparing the jury to “other adjudicators.” Among these other adjudicators, arguably, are voting officials. Yet without making any reference to his previous decisions and his unwillingness to condemn nonuniformity, Kennedy ruled in Bush v. Gore that nonuniformity alone made the Florida hand count unconstitutional.34

(p.140) Kennedy went on in the punitive damages case to caution about the limited role of federal courts in dictating to the states how much discretion they should give to adjudicators:

In my view, the principles mentioned above and the usual protections given by the laws of the particular State must suffice until judges or legislators authorized to do so initiate system‐wide change. We do not have the authority, as do judges in some of the States, to alter the rules of the common law respecting the proper standard for awarding punitive damages and the respective roles of the jury and the court in making that determination. Were we sitting as state‐court judges, the size and recurring unpredictability of punitive damages awards might be a convincing argument to reconsider those rules or to urge a reexamination by the legislative authority. We are confined in this case, however, to interpreting the Constitution, and from this perspective I agree that we must reject the arguments advanced by petitioner.

Although election cases are different from tort cases and capital punishment cases, and although vote counters are not exactly the same as jurors, the principles of equal protection applicable to different kinds of cases should bear some similarity to each other. There must, after all, be some general principle underlying the equal‐protection clause. That general principle, according to Kennedy, is that “nonuniformity cannot be equated with constitutional infirmity,” and if that principle governs in cases involving punitive damages and the death penalty, it should also govern in vote‐counting cases. It is true that in the former cases, a jury is evaluating people and complex actions, whereas in the voting case, an election official is examining a ballot. But as I have shown in Chapter 2, this is a difference of degree and not of kind, and in all of these cases, narrower and more uniform standards would be feasible. Yet Kennedy has never insisted on uniformity (p.141) in other contexts. Only in the voting context—and perhaps not even in all voting cases—does he now demand “specific rules designed to ensure uniform treatment.”

Justice Kennedy abandoned his long‐held principles when he wrote the per curiam opinion in the Florida election. Like the other majority justices, he also ignored his own precedents in stay cases: He had voted to deny stays and allow defendants to be executed even in cases where the Supreme Court had already granted review. In ignoring these past decisions and principles, he also ignored the importance he had always attributed to past precedents of the Court. Recall that he, too, was one of the authors of the Court's joint opinion in Planned Parenthood v. Casey, which spoke so eloquently about the need to follow past precedents even when one may not agree with them.35 He also joined the Court's opinion in Dickerson, in which an extremely unpopular prior decision—Miranda v. Arizona—was reaffirmed despite the disagreement that he and several other justices had with it. In the Florida election case, Justice Kennedy ignored precedents he did agree with—and will again agree with in the future. It is clear to me, and to many others, that he would not have ignored these precedents had the shoe been on the other foot.

Chief Justice Rehnquist

Don't bother so much with the reasoning.

It will only trip you up.

—Chief Justice Rehnquist giving advice to another justice

struggling with the reasoning in an opinion, cited in

Edward Lazarus, Closed Chambers

According to Linda Greenhouse, who reports on the Supreme Court for the New York Times, it was Chief Justice Rehnquist who quarterbacked the high court's intervention into the Florida (p.142) recount case: “Although his role was less visible [than Scalia's], Chief Justice Rehnquist took an active part from the beginning in shaping the Court's response to the events in Florida.”36 This should not surprise anyone familiar with Rehnquist's long history of unprincipled, partisan judicial activism and his freewheeling approach to the Constitution as a means of serving his political and ideological and personal agendas. I don't know anybody who had any real doubt that Rehnquist would vote to decide the case in favor of Bush. He has always been known as a result‐oriented judge who never let judicial philosophy stand in the way of his politics. He also has a disturbing history in relation to the equal‐protection clause of the Fourteenth Amendment, which I will discuss shortly.

Justice Rehnquist, though joining with Justice Scalia and Thomas in their separate opinion based on Article II, also joined the per curiam equal‐protection opinion. Yet Justice Rehnquist's previously expressed grudging views on equal protection appear to be even more at odds with the rationale in the per curiam opinion than those of the other justices. Perhaps his willingness to join an opinion with which he fundamentally disagreed in order to achieve a result he very much wanted was an example of the advice he once gave another justice: “Don't bother so much with the reasoning.” For Rehnquist, it has always been the result that counts.

Rehnquist has insisted that the equal‐protection clause was designed to deal with racial discrimination, both insidious and benign. This limitation to racial discrimination is more than ironic in light of Rehnquist's approval of state‐supported racial segregation earlier in his career.37 When race was used primarily to discriminate against blacks, Rehnquist saw no equal‐protection problem caused by racial discrimination. But now that race is used primarily to benefit blacks, in the affirmative‐action context, suddenly Rehnquist has become a convert to a color‐blind view of equal protection. While any classification (p.143) based on race or ethnicity, whether its purpose is to accomplish segregation or affirmative action, is suspect, that is not the case with regard to nonracial (or closely related) classifications.38 In an opinion dissenting from a ruling that discrimination against aliens requires special scrutiny,* Rehnquist wrote the following:

The principal purpose of those who drafted and adopted the 14th Amendment was to prohibit the States from invidiously discriminating by reason of race . . . and, because of this plainly manifested intent, classifications based on race have rightly been held “suspect” under the Amendment. But there is no language used in the Amendment, nor any historical evidence as to the intent of the Framers, which would suggest to the slightest degree that it was intended to render alienage a “suspect” classification, that it was designed in any way to protect “discrete and insular minorities” other than racial minorities. . . . Our society, consisting of over 200 million individuals of multitudinous origins, customs, tongues, beliefs, and cultures is, to say the least, diverse. It would hardly take extraordinary ingenuity for a lawyer to find “insular and discrete” minorities at every turn in the road. Yet, unless the Court can precisely define and constitutionally justify both the terms and analysis it uses, these decisions today stand for the proposition that the Court can choose a “minority” it “feels” deserves “solicitude” and thereafter prohibit the States from classifying that “minority” differently from the “majority.” I cannot find, and the Court does not cite, any constitutional authority for such a “ward of the Court” approach to equal protection.39

(p.144) Nor has Rehnquist generally advocated strict scrutiny in other equal‐protection contexts, especially in cases in which it is impossible to identify the group—whether “insular,” “discrete,” or anything else—that was denied the equal protection of the law.40

Prior to the Florida case, all Rehnquist seemed to have required, in equal‐protection challenges not involving race‐related discrimination, was that the state have a rational basis for the classification it has chosen. Moreover, he has recognized that the state cannot possibly account for every contingency with specificity and that it need strive only “for a level of generality that is administratively practicable.” He has acknowledged that some inequality may have to be tolerated because of the impossibility of attaining perfect equality in the real world,41 and he has been extremely critical of the kind of judicial intervention in which he himself joined in Bush v. Gore. In an earlier case,42 he had criticized other justices for having

produced a syndrome wherein this Court seems to regard the Equal Protection Clause as a cat‐o'‐nine‐tails to be kept in the judicial closet as a threat to legislatures which may, in the view of the judiciary, get out of hand and pass “arbitrary,” “illogical,” or “unreasonable” laws. Except in the area of the law in which the Framers obviously meant it to apply—classifications based on race or on national origin, the first cousin of race—the Court's decisions can fairly be described as an endless tinkering with legislative judgments, a series of conclusions unsupported by any central guiding principle.

He went on to caution that

in providing the Court with the duty of enforcing such generalities as the Equal Protection Clause, the Framers of the (p.145) Civil War Amendments placed it in the position of Adam in the Garden of Eden. As members of a tripartite institution of government which is responsible to no constituency, and which is held back only by its own sense of self‐restraint . . . we are constantly subjected to the human temptation to hold that any law containing a number of imperfections denies equal protection simply because those who drafted it could have made it a fairer or a better law.

In Bush v. Gore, Rehnquist easily succumbed to the temptation to use the equal‐protection clause to declare unconstitutional an arguably “imperfect” law that had nothing to do with the central concerns of the Fourteenth Amendment, has long been in use in several states, and did not discriminate against anyone.

Rehnquist's long‐standing approach to equal protection would seem entirely consistent with upholding the Florida law, which, by mandating the clear intent of the voter as the governing standard, strove for a level of generality that is administratively practicable and, indeed, practiced in many other states.43 Yet Rehnquist joined the opinion striking down the Florida law and stopping the recount. He did not let “reasoning” trip him up. He knew where he wanted to end up—with Bush as president—and to accomplish that result, he joined an equal‐protection decision that was totally at odds with his previously expressed views.

Nor was his concurring opinion ending the recount on Article II grounds consistent with his previously expressed views about the role of the Supreme Court in regard to matters generally left to the states. Since his earliest years on the high court, Rehnquist has expressed concern over the propensity of “the national government”—including the Supreme Court—to “devour the essentials of state sovereignty,” which in his view are protected by the Tenth Amendment.44 Few matters are (p.146) more essential to state sovereignty than the power of the state supreme court to interpret its own laws without being second‐guessed by federal judges. More recently, Rehnquist has restated a position that, he says, is among the “first principles” of federalism: that the federal government has limited powers in relationship to the states. Quoting James Madison, he has insisted that the powers “delegated . . . to the federal government are few and defined.”45 Before Bush v. Gore, these powers were never understood to include telling a state supreme court that it could not interpret a state election statute consistent with how it has been interpreted for more than three‐quarters of a century.

Chief Justice Rehnquist would not ordinarily subscribe to the pragmatic argument that despite the absence of explicit constitutional authority, it is the job of the Supreme Court to intervene in order to avoid a political crisis. He has written eloquently about how the Framers of our Constitution realized that “no charter of government could possibly anticipate every future contingency, and they, therefore, left considerable room for ‘play in the joints.’ ”46 Yet in this case, he left no room for the election to be resolved by the political processes mandated by the Constitution.

It is simply inconceivable to me, and I suspect to many other students of Rehnquist's prior decisions, that he would have voted to stop this hand count—on any constitutional ground—had the beneficiary of that ruling been Al Gore.

Justice Thomas

In my view, [if judges] are not impartial,

they are no longer judges.

—Justice Thomas in a speech before the Federalist Society

National Convention, November 12, 1999

(p.147)

The heart of Thomas's strategy for striking back at his liberal critics is, of course, to utilize the Supreme Court itself.

—Jeffrey Toobin, “The Burden of Clarence Thomas,”

The New Yorker, September 27, 1993

Prior to the Florida recount case, Justice Thomas's views on equal protection were extremely narrow and grudging. In a 1996 dissenting opinion, he wrote:

[T]he Equal Protection Clause shields only against purposeful discrimination: A disparate impact, even upon members of a racial minority, the classification of which we have been most suspect, does not violate equal protection. The Clause is not a panacea for perceived social or economic inequity; it seeks to “guarantee equal laws, not equal results.” . . . [W]e have regularly required more of an equal protection claimant than a showing that state action has a harsher effect on him or her than on others. . . . Our frequent pronouncements that the Fourteenth Amendment is not violated by disparate impact have spanned challenges to statutes alleged to affect disproportionately members of one race . . . members of one sex . . . and poor persons seeking to exercise protected rights.47

Both in his opinions and in his public statements, Thomas has railed against using the courts to achieve the kind of perfect symmetry or equality demanded by the majority in the Florida election case. In an earlier case, he made the following point:

Whether embodied in the Fourteenth Amendment or inferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.

(p.148) He quoted the following passage from Vance v. Bradley with approval:

The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.48

Thomas has also complained about courts substituting their personal or political predilections for the rules, messy as they may be, set out in the Constitution. In a previous voting rights case, he argued:

The choice [of how legislatures engage in redistricting] is inherently a political one, and depends upon the selection of a theory for defining the fully “effective” vote. . . . In short, what a court is actually asked to do in a vote dilution case is “to choose among competing bases of representation—ultimately, really, among competing theories of political philosophy.” . . . Such matters of political theory are beyond the ordinary sphere of federal judges. . . . The matters the Court has set out to resolve in vote dilution cases are questions of political philosophy, not questions of law. As such, they are not readily subjected to any judicially manageable standards that can guide courts in attempting to select between competing theories.49

In other words, the Supreme Court should not be in the business of choosing among different ways that a state may decide to count votes. Yet in Bush v. Gore, too, there were “competing theories” regarding vote counting. Florida, along with several other states, had opted for a voter‐intent theory, which erred on the side of overinclusion of questionable votes rather than (p.149) underinclusion. Yet Thomas joined an opinion denying Florida the power to select “among competing theories of political philosophy.”

Thomas also joined Chief Justice Rehnquist's concurring opinion stopping the hand count on Article II grounds, having previously joined numerous opinions extolling the powers of the states in relation to the federal government. He joined the opinion in a 1992 decision that referred to a truth “so basic” it is “like the air around us”:

States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government's most detailed organizational chart. The Constitution instead “leaves to the several States a residuary and inviolate sovereignty” . . . reserved explicitly to the States by the Tenth Amendment.50

This, of course, must include the state's highest court if it has been empowered by state law to interpret state statutes. But in Bush v. Gore Thomas ignored these principles of federalism when he joined the concurring opinion, which, for purposes of a presidential election, treated the Supreme Court of Florida as if it were a lower federal court that had erred in interpreting a federal statute.51

In a 1995 case in which the Supreme Court struck down an Arkansas term limitation amendment for members of the U.S. House and Senate,52 Justice Thomas wrote a scathing dissent (joined by Chief Justice Rehnquist and Justices Scalia and O'Connor) in which he extolled the virtues of state sovereignty and the power of states, in the context of electing federal officials, to determine their own standards. Thomas focused on the words of the Tenth Amendment, which leave all reserved powers (p.150) to “the states respectively, or to the people.” He interpreted this as leaving the states entirely free to take any position they choose “on the division of power between the state governments and the people of the States. It is up to the people of each State to determine which ‘reserved’ powers their state government may exercise.” Quite simply, in regard to elections, Thomas is saying that it is up to the people of each state, including Florida, to decide how to allocate authority among the voters, the state legislature, the courts, and any other state institutions. The federal government has no power to interfere with any such allocation unless it violates the U.S. Constitution. Pursuant to this power, the Florida legislature allocated to its courts, including its Supreme Court, the power to interpret its statutes, including its election statutes. Article II doesn't take that power away in elections for presidential electors. As McPherson v. Blacker, the 1892 case cited by Chief Justice Rehnquist in his concurrence, ruled, “[w]hat is forbidden or required to be done by a state” in the context of Article II “is forbidden or required of the legislative power under state constitutions as they exist.”53 Indeed, Justice Thomas explicitly referred, in his opinion in U.S. Term Limits v. Thornton, to “even the selection of the President—surely the most national of national figures” as being accomplished by electors “chosen by the various States.” But in Bush v. Gore, Thomas joined an opinion that would forbid the state of Florida to allocate to its own supreme court the power to interpret and apply its own election laws in a manner consistent with what it has been doing for generations.

These glaring and dramatic inconsistencies between the views previously expressed by the majority justices and their decision in Bush v. Gore are not merely the incidental or inevitable results of many cases with different law clerks over long judicial careers. Rather, they go to the core of everything these justices (p.151) have stood for over many years—and will continue to stand for over the years to come. The centrality of these discrepancies raises a compelling inference of willfulness, deliberateness, and calculation in the making of the decision in the Florida case. This inference, in turn, raises the question of why. Why would these justices risk their reputations and that of the Court by rendering a decision that appears so partisan to so many?

Why?

One of the most venerable principles of law is that the prosecution need not establish a motive in order to prove guilt. Yet jurors inevitably speculate about motive, and the absence of one can be seen as evidence of innocence, just as the presence of one can add to the evidence of guilt. Accordingly, most prosecutors seek to introduce as much evidence of motive as is available and admissible, so that the jury may include it in its overall assessment of the case. Necessarily, any such evidence will be somewhat subjective, imprecise, and speculative, since no outsider can ever know with certainty which factors might have motivated certain actions, and even the actor himself may lack insights into his true motives, which are often mixed and not always conscious. Rationalization is a powerful force allowing people to believe that they were motivated by factors somewhat more elevated and acceptable than the ones that may actually have influenced their conduct.

Despite the difficulty of assessing motives, I know—as a practicing lawyer with many years of experience in trying to predict how judges will decide cases—how important this sort of informed speculation can be in making decisions about the nature of arguments to be presented, the likelihood of success, and the need to consider settling a case out of court. Lawyers must cut through the rationalizations, the abstractions, and the self‐deception in order to give their clients commonsense advice (p.152) about why judges decide cases the way they do. In order to make the kind of “prophecies”—predictions about what the courts will do—that Holmes saw as central to the law, lawyers not only have detailed knowledge about judges' prior decisions, but also have a perceptive understanding of what actually motivates judges in their decisions. Reading their past opinions is obviously necessary, but it is not sufficient. A good lawyer must go beyond the opinions and beneath the rhetoric to get at the essence of the judge. The courthouse scuttlebutt, the barroom gossip, the experiences of insiders, the insights of former law clerks—these are what the client pays to get, over and above what any first‐year associate can find in the library. That is why local lawyers are an important part of any complete legal team.

A great lawyer needs an instinct for the jugular, a sense of what is really going on in the mind, heart, and soul of the judge. Nearly all the successful practicing lawyers I know have employed biographical information about justices to speculate about their motivations, and this is what the lawyers on both sides of this case did, in regard not only to the justices of the Supreme Court, but to the lower court judges as well.

Since I am both a practicing lawyer and an academic (with an extensive network of sources regarding the Supreme Court justices), I feel it part of my responsibility to my readers to share with them all of the tools I commonly employ in my work—to serve as a kind of “local counsel.” These tools include both case analysis and the kind of biographical information and assessment of motives that I will now briefly present. I believe that even without any specific evidence of possible motives, I have made a compelling case in support of my accusation that none of the five majority justices would pass the shoe‐on‐the‐other‐foot test, and I leave it to each reader to decide how much weight, if any, to assign to this additional material.

Let me begin by acknowledging that an individual may have (p.153) more than one motive for a single act. A domestic killing may be motivated by love, hate, jealousy, fear, and financial benefit. A decision to abandon a long‐held judicial philosophy in order to ensure the election of a particular candidate may be motivated by patriotism, ideology, partisanship, ambition, and the expectation of material benefit.

I have little doubt that each of the five majority justices was motivated, at least in part, by patriotism: They honestly believed that the election of George W. Bush would be best for the country, the world, and the Supreme Court. They no doubt believe strongly in the appointment of federal judges and justices who share their party background and jurisprudence, and they may even have felt that the actions of the Florida Supreme Court provided them with a moral (if not legal) justification for their actions.

Supreme Court justices are, of course, entitled to have strong political views and to act on them—on Election Day, when they cast their votes as ordinary citizens. They are not entitled, however, to act as partisan patriots when they are deciding a case as Supreme Court justices. When acting in that capacity, they have taken an oath to be politically blind to the identity, party affiliation, and ideology of the litigant‐candidates whose case is before them. Their job as justices is not to decide who would make the best president, but to determine which litigant has the law on his side. This cannot be easy for any human being, even a judge, to do. Indeed, that is one of the many good reasons why judges should be, and generally have been, reluctant to decide election cases. Election cases are political by nature, and courts try to stay out of the political thicket. Elections are often rough‐and‐tumble affairs, not easily amenable to resolution by principles familiar to judges. And when judges decide hotly disputed elections, they “foreclose . . . all democratic outlets for the deep passions” engendered by these elections, as Justice Scalia once put it.54

(p.154) In addition to these institutional reasons, judges may also have personal considerations that counsel caution about deciding elections, especially elections in which they, as citizens, have previously voted for one of the litigants. In such cases, they have declared their stake in the outcome. By voting for a particular candidate who is now a litigant in his court, the judge has indicated that he favors that candidate. Arguably, there are times when the stake is minor or nonexistent, as it might be in a local election for a relatively insignificant office. When the election is for president of the United States, however, it is likely that the judge, as a voter, feels somewhat strongly about what is best for the country, even if neither candidate is his absolute favorite. This is particularly true of Supreme Court justices, whose future colleagues will be nominated by the winner of the election, and for whom the composition of the Court determines their own status as majority or dissenting justices.55

There will, of course, be occasions on which judges have no choice but to decide election cases. In such cases, they are expected to put aside their political preferences, but this cannot be easy, even when a judge has no greater stake in the outcome of the election than any ordinary citizen. This is always uneasy terrain for a judge to traverse, since in the typical case, he has no interest in the outcome, beyond the duty to decide it correctly on its legal merits.

Oliver Wendell Holmes once described a good judge as one who has “no thought but that of which he is bound” and who has learned “to solve a problem according to the rules by transcending his own convictions and to leave room for much that he would hold dear to be done away with”—a difficult challenge for any human being even in a case in which he has no personal stake.56 Judges are expected to confront that challenge in the election cases that occasionally come before them. But when a particular judge stands to benefit or lose something material—something (p.155) palpable, personal, or strongly ideological—in addition to what every other citizen has at stake in a presidential election, it may be too much to ask that judge to decide the case as if it were an ordinary litigation involving strangers, with no possible impact on the judge's life. That is why the rules of judicial conduct expressly forbid a judge to sit in any case in which he or she has a personal interest. It doesn't matter whether the judge is actually motivated—in whole or in part—by the prospect of personal gain or loss. The possibility alone creates an appearance of impropriety and casts suspicion on the integrity of the judicial process.

I believe that some judges are capable of voting for one candidate on Election Day and then ruling against that candidate in a postelection legal controversy. Indeed, many observers expected that Justice Kennedy and/or Justice O'Connor might do just that. I myself harbored the belief that Justice Scalia might decide the case on the basis of his strong views that the Court should not become involved in a case such as this one. I know of no experienced lawyer who realistically thought that Chief Justice Rehnquist or Justice Thomas would decide the case in Gore's favor.

In addition to the general patriotic‐partisan motive that all of the majority justices shared,57 I believe that some of them had additional possible motives to help ensure the election of George W. Bush. In several instances these motives were so obvious and public that several commentators called for certain justices to recuse themselves from the case.58 I do not know—and I'm not even certain all of the justices themselves know—whether these additional motives played any role (and if so, how much of one) in their decision. Social scientists talk about “overdetermination,” meaning that a given act can be caused by several factors, any one of which alone might have been strong enough to have fully caused the act, and that may well have been what happened in Bush v. Gore.

(p.156) Justice O'connor

The patriotic‐partisan motive alone might well have caused Sandra Day O'Connor to decide the case in favor of Bush, even if she had not also had a unique personal motive to help guarantee a Bush victory. A closer look at the O'Connor situation may help us to understand both the difficulty and the importance of trying to assess motive in this kind of a situation. It may also help us understand why we need prophylactic rules of judicial disqualification in close cases involving the possible combination of proper and improper motives.

It has been widely reported that O'Connor was hoping for a Bush victory so that she could retire from the Supreme Court with the assurance that her replacement would be named by a Republican president. According to reports, O'Connor—who is seventy years old and a breast cancer survivor—was anxious to join her ailing husband in Arizona but planned to delay her retirement in the event of a Gore victory. A story in Newsweek reported that while watching the media coverage on election night with friends, she responded to news projections that Gore had won Florida by exclaiming, “This is terrible!” The Newsweek report continued:

She explained to another partygoer that Gore's reported victory in Florida meant that the election was “over,” since Gore had already carried two other swing states, Michigan and Illinois.

Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst. John O'Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they'd have to wait another four years. O'Connor, the former Republican majority leader of the Arizona (p.157) State Senate and a 1981 Ronald Reagan appointee, did not want a Democrat to name her successor. Two witnesses described this extraordinary scene to Newsweek. Responding through a spokesman at the high court, O'Connor had no comment.59

Personal retirement plans constitute self‐interest under the codes of judicial conduct, and so if these reports are true, then O'Connor probably should not have participated in any of the presidential election cases. Whether or not she was actually influenced by this personal motivation, the possibility that she might have been—or that reasonable observers could honestly believe she was—is enough to raise a serious question about the appearance of justice. One former Supreme Court law clerk, noting O'Connor's “newly petulant attitude during oral arguments” in this case, commented that the high court's 5–4 vote “has raised the specter that some of the conservative justices, yearning for retirement, suffered from a serious conflict of interest when deciding the case.”60 The only other justice to whom he could have been referring is Chief Justice Rehnquist, who suffers from severe back problems; it has been widely reported that he wishes to retire from the high court, but only if his replacement will be named by a Republican president.61 Unlike O'Connor, he apparently did not talk as openly about his retirement plans or about how “terrible” a Gore victory would have been. But the Bush administration is aware of Rehnquist's wish to retire, and it is already gearing up to find a suitable replacement.

Some of the lawyers with whom I have discussed the matter have suggested that in O'Connor's case, her personal motive may not have been the deciding factor, since she already had a strong political inclination toward favoring a Bush victory, and what she meant by “terrible” was terrible for the country, not (p.158) terrible for her and her retirement plans, despite her husband's statement to the contrary. She is, after all, a lifelong Republican who has served in various leadership roles in that party. She was “extremely active in the Arizona Republican Party and in Barry Goldwater's 1964 presidential campaign” and was co‐chair of Richard Nixon's Arizona reelection campaign;62 she served as the Republican leader of the state senate and was considered as a Republican candidate for governor. “She was a very political animal,” said one observer at the time of her nomination. “She started out as a moderate Republican and then . . . moved toward the right.”63 After paying her dues to the Republican Party, she was brought to the attention of President Ronald Reagan by her law school classmate William Rehnquist and by Senator Barry Goldwater, though she had served as an Arizona intermediate appellate court judge for less than two years at the time.64 She was interviewed by then—Justice Department lawyer Kenneth Starr, who reported back that she was a law‐and‐order judge who was likely to defer to other branches of government.65 She was quickly nominated and confirmed as the first woman to serve on the Supreme Court.

She was not, of course, the first politically active elected official to serve on the high court, but traditionally politicians have left their partisanship behind when joining the Court. Not so with O'Connor. While serving as a justice, she has been criticized by judicial ethics experts on at least two occasions for using her position as a justice to support partisan Republican causes.66 Such criticism is rare in the Court's history.

The first incident that raised ethical questions occurred in 1987, when O'Connor agreed to conduct a “private briefing” on the workings of the Supreme Court for Republicans who had contributed at least $10,000 to a political action group called GoPac, which was seeking to gain Republican control of Congress. She bowed out of this partisan fund‐raising event only after ethics experts publicly criticized her actions as violating the (p.159) American Bar Association's Code of Judicial Conduct—but not until after her name had been used successfully in the fund‐raising solicitation. Two years later O'Connor responded to a request from an Arizona Republican asking her to write a letter in support of a proposed Republican Party resolution declaring the United States to be “a Christian Nation . . . based on the absolute law of the Bible, not a democracy.” She did so, and her reply—written on Court stationery—was circulated as part of the campaign to help the Arizona Republican Party.67 When her letter was publicly disclosed, Justice O'Connor issued a statement regretting that the “letter she had written to an acquaintance. . . was used in a political debate.” The Court press office said that she had “had no idea” the letter would be used politically. The available evidence points to the opposite conclusion. The request itself made it unmistakably clear that she was being asked to write her letter specifically for use in the campaign by conservative Republicans to take votes away from Democrats in Arizona:

Republicans are making some interesting advances in this heavily controlled Democratic area. Some of us are proposing a resolution which acknowledges that the Supreme Court ruled in 1892 that this is a Christian Nation. It would be beneficial and interesting to have a letter from you.68

Justice O'Connor has thus twice publicly endorsed partisan Republican causes. Her regrets—which were incomplete and misleading—came only after public criticism. Nothing in her background suggests that she would have risked criticism for comparable Democratic causes. In light of the close association she has maintained with Republican causes and officials, it came as no surprise when, in 1988, an aide to George H. Bush, then a presidential candidate, characterized O'Connor as a Bush “dream pick” for vice president if he received the Republican presidential nomination.69

(p.160) Although O'Connor has not repeated her openly partisan mistakes in recent years, her obvious dismay at Gore's apparent victory on election night shows that her allegiance to her old party is still strong. The conservative Republican columnist Robert Novak, in a recent article praising Justice O'Connor's role as a “flexible politician” on the high court, quoted a “well‐connected conservative lawyer” as saying that after nearly twenty years on the Court, she is “what she always has been and always will be: the Republican floor leader of the Arizona Senate.”70 If we accept this picture of O'Connor as a still‐loyal Republican politician who has already acknowledged that she wants her replacement to be picked by a Republican president, we can certainly speculate that she might have voted for the Republican candidate for these reasons alone. According to this scenario, her vote was motivated not by personal, material considerations—namely, her wish to retire—but instead by party loyalty. Or, to put the best partisan face on it, she was motivated by a desire to see the best man elected as president.

She was also reportedly “furious” at the Florida Supreme Court for what she believed was its partisan intervention in favor of Gore. It is impossible to know whether this fury was institutional or personal: Would she have been as angry had a state court similarly intervened in favor of Bush?

There is, of course, no way to separate completely the personal from the partisan in this situation, because it is O'Connor's choice not to retire unless her replacement would be named by a Republican president. Were it not for this partisan choice, she could have satisfied her personal desire to retire at any time, regardless of who won the election.

Of course, even if the personal could be separated from the partisan, the suggestion that the deciding factor in her decision was her partisan support for the Republican candidate rather than her personal desire to retire does not put O'Connor in a (p.161) much better light. Her judicial vote was improper if it was influenced by either personal or partisan political considerations. Her vote would be proper only if she would have voted exactly the same way if stopping the recount would have ensured a “terrible” Gore victory, rather than a personally and politically beneficial Bush victory. In order to prove this highly unlikely—and incomplete71—defense, one would have to demonstrate a pattern of judicial voting, in other relevant cases not involving personal or partisan outcomes, consistent with her vote in this case. Such a pattern is, to say the least, not evident.

If Election 2000 had been decided by a legislature of which O'Connor was a member, she certainly would have been questioned about her apparent conflict of interest. But because she is a justice of the Supreme Court—an institution deemed above partisanship—there is a tendency to resolve doubts in favor of her integrity. In this case, however, there do not appear to be real doubts to resolve. The available evidence, in my view, strongly suggests that Justice O'Connor, at the very least, had the appearance of a conflict of interest following her revealing statement on the night of the election. How much of a role, if any, her retirement motive played in causing her to fail the shoe‐on‐the‐other‐foot test is impossible to calibrate. That she did fail this test seems clear from the totality of evidence.

While O'Connor was in the process of being confirmed to the high court, she told the senators that she would like to be remembered with the following epitaph: “Here lies a good judge who upheld the Constitution.”72 She has recently acknowledged to a mutual friend that her vote in the election case may have hurt her reputation and endangered her place in history. She is right.

The crowning irony is that O'Connor may not now be able to retire from the Court without confirming the worst suspicions about her motives. A recent story in the New York Times (p.162) has reported that “associates of Justice O'Connor have signaled that she wants it known that she will not retire after this term” (which ends in July, 2001).73 I have also been told that O'Connor wants more time to rebuild her tarnished legacy and does not wish to be remembered by her vote in Bush v. Gore.

Justice Kennedy

Mixed motives may also have been at play with regard to Anthony Kennedy's decision to join the majority. I have been told by a source close to the Court that Anthony Kennedy has a quiet but determined ambition that could be satisfied only if Bush became president: He wants to become the next chief justice of the United States when William Rehnquist steps down, as he is expected to do now that a Republican president is in office.

Kennedy realized that because of his own background in Republican politics—he had ties to Ronald Reagan during Reagan's governorship and to Reagan's executive secretary, Edwin Meese, and had worked as a lobbyist—he would stand little chance of being promoted to chief justice by a Democratic president. He has confided his ambition to trusted friends and former law clerks, who have shared this information with my source. One former clerk has pointed out that in recent years, as the prospect of a vacancy has drawn closer, Kennedy has changed his vote in several cases to enhance his standing as a strong candidate to fill that vacancy.74

This speculation has also been reported by Robert Novak, who has excellent sources within the conservative movement: “Kennedy's recent swing to the right led court‐watchers to conclude that he was readying himself for a chief justice vacancy in a Republican administration.”75 Novak had previously pin‐pointed one decision by Kennedy that “raised suspicions in legal (p.163) circles that he is launching a campaign to be the next chief justice if a Republican is elected president.”76

It has now been reliably reported—and I have been able to confirm independently—that Justice Kennedy was the primary author of the Court's final per curiam opinion.77 I have also been told that Justice Kennedy wishes to have his authorship known to the Bush administration. In his campaign for the chief justiceship, he has emphasized that because of his generally moderate views, he is the only inside candidate who is confirmable by the Senate, but—as evidenced by his vote in Bush v. Gore—he is also a moderate who can be counted on when push comes to shove.

We can't know for certain whether my source is correct about Kennedy's ambition and, if so, whether it played any role in his vote in the Florida recount case. What we do know is that his vote and the arguments he presented in the opinion to support it were inconsistent with his previously expressed substantive views on equal protection, with his long‐held attitudes toward the force of precedent, with his previous votes on stay applications, and with his frequently stated position on the limited role of courts in cases involving large issues of politics and policy. So at the very least, there is evidence of a motive other than the desire to follow his previous decisions and rule fairly.

There is no public information that would have justified Kennedy's recusal in this case, but if he in fact chose personal ambition or party loyalty over principle, then he has, in my view, morally disqualified himself from becoming chief justice or earning a place of honor in the history of the Supreme Court. A justice who once bends the rules to favor a particular litigant can never again be trusted not to break them if the stakes are sufficiently high. A justice who allows himself to become blinded by personal ambition should not be rewarded by having his ambition satisfied.

(p.164) Justice Thomas

Clarence Thomas is a reliable member of the Court's right wing78 and is also, according to people who know him well, consumed by the need to strike back at those Democrats who put him through the “high‐tech lynching” of the Anita Hill hearings.79 Thomas divides the world into friends and enemies. “Good versus evil” is how his wife, Virginia Thomas, described the “spiritual warfare” of his confirmation hearings, which left Thomas with a long enemies list consisting primarily of Democratic senators who voted against his confirmation—among them Al Gore and Joseph Lieberman.

At the time, Gore said his negative vote was based on Thomas's “judicial philosophy” and his testimony—which Gore did not believe—that he had never discussed Roe v. Wade, implying that he had no fixed views on the abortion issue. Lieberman, who originally supported Thomas's nomination, changed his mind after hearing Anita Hill's testimony, which, he concluded, was “believable.” Gore also found Hill to be “believable and credible,”80 which carried the implicit assertion that Thomas was lying. On the other hand, George W. Bush's father nominated Thomas to the Supreme Court, declaring him to be “the best man for the job,” and stood behind him in the face of Democratic attacks. During the campaign, George W. Bush characterized Thomas, along with Antonin Scalia, as his two favorite justices. Gore criticized Bush for singling out these two justices, saying that “when the names of Scalia and Thomas are used as benchmarks for who would be appointed, those are code words.”81 One can only imagine how Thomas must have reacted to being characterized as a code word.82

Following his close confirmation, Thomas began to withdraw, both publicly and privately. He almost never spoke during Supreme Court arguments, though he had been an active questioner during his days on the Court of Appeals. According (p.165) to one observer, Thomas “not only remained unvaryingly silent but looked uninterested, often not even bothering to remove the rubber band from his stack of briefs.83 He stopped watching the news on television or reading mainstream newspapers or magazines. He limited his information sources to “reliably conservative publications” and to Rush Limbaugh—“[f]or entertainment, he says he likes to listen to tapes of Rush Limbaugh poking fun at feminists, environmentalists and all manner of liberal crusaders.”84 The groups he publicly says he likes to hear fun made of are, of course, often litigants in cases before him. He almost always rules against them.85

Thomas speaks primarily to right‐wing groups, and he, too, was criticized for agreeing to give a dinner speech to the Claremont Institute, a group that was actively seeking President Clinton's impeachment, that was scheduled for just three days before the impeachment vote.86 According to the Los Angeles Times, Thomas, “alone among the justices, . . . has spoken regularly before groups that espouse strongly conservative views,”87 despite the Judicial Code of Conduct, which prohibits a judge from “being a speaker or guest of honor at an organization's fundraising events” or “making speeches for a political organization.”88 Thomas has spoken to and been honored by several partisan organizations that supported his nomination.89 At one such event, he expressed his “sense of gratitude and sense of loyalty.”90 Thomas not only provided an “exclusive and challenging message deep from his heart” to the Concerned Women for America, but sat on cases in which they had filed briefs—and voted in favor of their positions.91 His loyalty to those who supported him is as powerful—and as influential on his decisions—as his hatred for those who opposed him.

At the time of the Supreme Court's decision in the Florida recount case, Virginia Thomas was working for the Heritage Foundation, a conservative group with close ties to the Bush campaign, gathering resumes for the Bush transition team.92 (p.166) Many observers, including a federal judge, believe that Justice Thomas should have recused himself from the case because of his wife's connections to the Republican Party and her substantial interest in a Bush victory.93

An even more compelling argument for his recusal would have been his abiding hatred for Gore and Lieberman (coupled with his deep sense of loyalty to the Bush family). According to Court watchers, even Thomas's “jurisprudence on the Court seemed guided to an unusual degree by raw anger.”94 Jeffrey Toobin quoted a longtime friend of the Thomases about the effect of the confirmation hearings on his role as a justice: “The real tragedy of this event is that his behavior on the court has been affected. He's still damaged. He's still reeling. He was hurt more deeply than anyone could comprehend.” His anger continues to “churn within” him. According to a close friend, “[h]e never wants the world to forget the price he paid to get” on the Court. He refuses to “let bygones be bygones” lest that be seen as “capitulation” to his enemies. His rage on the subject of his confirmation “is evergreen.”95 Thomas has acknowledged that he was a very angry man even before the hearings.96 After that transforming event, he became consumed with anger, hatred, and revenge. “His votes on the Supreme Court—and his public life as a justice—have reflected, with great precision, the grievance that simmers inside him.”97 His chambers “exuded a sense of score settling,” and his wife has said that he “doesn't owe any of the groups who opposed him anything98—suggesting that he does owe something to those who supported him. As Jeffrey Toobin has put it: “The heart of Thomas's strategy for striking back at his liberal critics is, of course, to utilize the Supreme Court itself.”99 Both sides regarded him as a sure vote for Bush, despite the fact that his previous decisions seemed to have favored the Gore positions on their merits.

(p.167) Justice Scalia

Antonin Scalia is certainly the most ideological and opinionated justice on the Court today.100 Although some critics sought his recusal because two of his sons worked for law firms that represented the Bush side, I find it difficult to believe he was actually motivated by such personal factors.101 According to people who know him, Scalia's primary motive is to pack the high court, as well as the lower courts, with judges who share his ideology. He has a loyal and dedicated following among former clerks, members of the conservative Federalist Society, and other like‐minded right‐wing Republicans. As his former colleague at the University of Chicago, Judge Richard Posner, recently put it:

The real conflict of interest is that justices are not indifferent to their colleagues and successors, and the president appoints them. That's an inherent serious conflict, because even if the justices play it straight and each says to himself or herself, I'm not going to think about the effect of this decision on my legacy as a Supreme Court justice, you can't exclude the possibility of an unconscious influence. If these justices had not been so interested in this case for themselves, they might not have picked up on some of the mistakes by the Florida Supreme Court. What a judge notices as “something bad enough to require action” is likely to be influenced by unconscious factors. You are just alert to things the way a drugsniffing police dog is alert to cocaine.102

Scalia himself does not fit neatly into any familiar political or ideological category. He is not a classic conservative, as that term has traditionally been defined in this country. American conservatism has always had more of a libertarian streak than (p.168) Scalia seems to embrace.103 His conservatisms, according to a professor who is an expert in these matters, are “of the Old World European sort, rooted in the authority of the Church and the military. It is more reminiscent of French, Italian and Spanish clerical conservatism than of American conservatism with its libertarian bent.” According to a Washington Post story, Antonin Scalia was sent to “an elite church‐run military prep school in Manhattan,” where one of his classmates remembered him at age seventeen as “an archconservative Catholic [who] could have been a member of the curia.”104 When he was nominated to the Supreme Court in 1986, the American Civil Liberties Union presciently summarized his views in the following terms:

In virtually every opinion that he has written addressing civil liberties issues, Judge Scalia has decided against the individual. He has restricted the protection of the First Amendment, made it more difficult for plaintiffs in discrimination cases to proceed and succeed, always upheld the state's position against that of the accused, almost always restricted the public's access to government information and has insulated executive action from judicial review.105

One of Scalia's staunchest supporters was far less prescient—at least about the justice's vote in the Florida election case. Norman Podhoretz, editor of Commentary, wrote in 1986 that “Scalia has decided against judicial intrusion into the business of the political branches.”106 If he had been truly prescient, he would have added: “ . . . except when necessary to get his candidate elected.”

Scalia's vote in Bush v. Gore has shown that the most accurate guide to predicting his judicial decisions is to follow his political and personal preferences rather than his lofty rhetoric (p.169) about judicial restraint, originalism, and other abstract aspects of his so‐called constraining judicial philosophy, which turns out to be little more than a cover for his politics and his desire to pack the Court with like‐minded justices.107 Because I like Justice Scalia as a person, I was most disappointed with his precipitous abandonment of principle in the name of partisanship.

Chief Justice Rehnquist

I was neither surprised nor disappointed by the actions of Chief Justice Rehnquist. No one I know seriously considered the possibility that Rehnquist had an open mind in this case—and not only because of his wish to retire and have his successor named by a Republican. He has always been a partisan justice. He was appointed for that reason. The tapes made in the Oval Office during Nixon's administration recorded White House chief of staff H. R. Haldeman telling President Nixon that Rehnquist “wouldn't have a snowball's chance of getting on that court” if the Senate hadn't been exhausted from the battle over the failed nominations of Clement Haynsworth and G. Harrold Carswell. On the tapes, Henry Kissinger asks whether Rehnquist is “pretty far right,” and Haldeman replies, “Oh, Christ, he's way to the right of Patrick Buchanan.”108

Despite Rehnquist's prior decisions limiting equal‐protection claims to racial grounds and his strong support for state sovereignty under the Tenth Amendment, he too was considered a sure vote for Bush. His motive may have been mixed and somewhat more difficult to decipher than some of the other justices', but his vote was a sure thing for the Republican candidate. Lawyers on both sides did not bother to speculate about why Rehnquist would vote in favor of Bush, because they were absolutely certain he would do so.

(p.170) The relevant information that might shed light on the mixed motivations of some of the majority justices varies from hard, undisputed, direct evidence to circumstantial inference and even, in some instances, to what would have to be characterized as courtroom scuttlebutt. Some of this information would be admissible in a court of law; some would not. Some of the facts raise questions about whether the justice should have participated in the case; some do not. Much of it was used by the lawyers in this case in an effort to help them decide which justices were sure votes and which were possibly open to persuasion. I'll leave it to the reader to decide whether a commonsense case has been made as to why some of these justices might have been motivated to place partisanship over principle.

In the case of Sandra Day O'Connor, the evidence of a palpable material benefit seems clear and has not been disputed. In the case of Anthony Kennedy, the evidence is far less certain. Though I have great faith in the source of my information about his ambition to become chief justice and about the actions he has taken to further that ambition, I must acknowledge that it is difficult to assess this kind of information. As to Clarence Thomas, the information about his anger at those who opposed his nomination and his loyalty to those who supported it is confirmed by numerous sources, yet by its nature it is subjective. In regard to William Rehnquist, it is impossible to identify a single motive beyond his general partisanship. Antonin Scalia, because he is the most brilliant of the majority justices, is also the most complex; his motivations, too, are difficult to pinpoint. Yet the conflict between his long‐expressed ideology and his vote in this case is more dramatic and more disturbing than that of any other justice.

The question of why is ultimately unanswerable. Yet evidence of motive, when combined with evidence of otherwise unexplained inconsistency, in so important a case raises a compelling (p.171) inference of impropriety. Though I am personally convinced beyond all reasonable doubt that none of the majority justices would have voted to stop the hand count if the shoe had been on the other foot, I cannot claim to know with any degree of certainty the precise reason or reasons why these four men and one woman would risk their hard‐earned personal reputations and the accumulated integrity of the Court by abandoning their previously expressed judicial philosophies in so transparent and partisan a manner. Historians and others will long speculate about this question, as they have every right to do, and perhaps someday we will learn more than we presently know.109 For now, we know enough to pass judgment on these justices based on the hard record of inconsistency between what they said a justice should do when legal principles conflict with personal preference and what they did do when such a conflict actually occurred in Bush v. Gore. As a result of their decision, the power and influence of the majority justices may be enhanced in the short run. They will be rewarded in the many subtle ways an administration can reward its favorites. They will have some say in future appointments to the high court. Their law clerks and allies will fill the Republican bureaucracy, spreading their gospel of conservatism. These are the spoils of political victory, and the majority justices are seen by many as responsible for the Bush victory.

In the course of writing this book, I have spoken to dozens of highly successful lawyers—lawyers who win because they understand judges. Virtually every one of them, Democrat or Republican, agrees with me that the majority justices in the Florida election case fail the shoe‐on‐the‐other‐foot test. As one usually cautious lawyer who practices extensively before the high court told me, “It insults our intelligence to suggest otherwise.” Many agree with the characterization “cheating.” Some disagree, arguing that what the justices did here is on a continuum with what many judges routinely do in criminal cases (p.172) in which they believe the defendant did it but also that the police violated the defendant's rights: They find ways to reach the result they favor (conviction of the factually guilty) even though the law demands a result they disfavor (release of the bad guy). Others believe that nearly all the judges in this highly politicized case—the Supreme Court dissenters, the Florida Supreme Court majority, and the lower court judges—would fail the shoe‐on‐the‐other‐foot test, and they contend that it is wrong to single out the majority justices for criticism. This is one heck of a commentary on the current status of our judiciary.

On May 9, 2001, President Bush, in introducing his initial nominees to the United States Courts of Appeal, said that he hoped these judicial nominees, if confirmed, would comply with the judicial oath, which reads, in part, as follows:

“I, ___, do solemnly swear (or affirm) that I will administer justice without respect to persons . . . ” (emphasis added).

The irony is that if the majority justices in Bush v. Gore had not violated that oath by deciding the case with respect to the persons and political parties involved, George W. Bush might not have been the president.110

Notes:

(*) Black's Law Dictionary defines strict scrutiny as the test that “requires state to establish that it has compelling interest justifying [a federal or state law that is found to adversely affect a fundamental right and] . . . that distinctions created by law are necessary to further some governmental purpose.”

(1.) U.S. v. Virginia, 518 U.S. 515, 596 (1996), Scalia dissenting.

(2.) Antonin Scalia, “The Rule of Law as a Law of Rules,” 56 U. Chi. L. Rev. 1175, 1179–80 (1989).

(3.) Ibid.

(4.) Hubbard v. U.S., 514 U.S. 695 (1995), Scalia concurring.

(5.) U.S. v. Virginia, at 568. Here he quotes from his own dissenting opinion in Rutan v. Republican Party of Ill., 497 U.S. 62, 95 (1990).

(6.) Scalia, “The Rule of Law as a Law of Rules,” 1178.

(7.) Antonin Scalia, “Originalism: The Lesser Evil,” 57 U. of Cincinnati L. Rev. 849, 863 (1989)

(8.) Cruzan v. Director of Missouri Dept. of Health, 497 U.S. 261, 300–301 (1990), Scalia concurring.

(9.) Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law, ed. Amy Gutmann (Princeton University Press, 1997), 17–18.

(10.) See, e.g., Richard A. Posner, “The Triumph of Expedience,” Harper's, May 2001; Cass R. Sunstein, “Order Without Law,” in Cass R. Sunstein and Richard A. Epstein, eds., The Vote: Bush, Gore, and the Supreme Court (forthcoming; available at www.thevotebook.com).

(11.) Morrison v. Olson, 487 U.S. 654 (1988).

(12.) Planned Parenthood v. Casey, 505 U.S. 833 (1992).

(13.) Quoted in Tinsley E. Yarbrough, The Rehnquist Court and the Constitution (Oxford University Press, 2000), 14.

(14.) Scalia did write an unusual separate opinion on the stay, but it simply asserted that the majority had the votes rather than explaining how it had the legal authority to stop the count.

(15.) See, e.g., General Motors Corp. v. Tracy, 519 U.S. 278, 312 (1997), where Scalia briefly concurs with the Court's opinion but “write[s] separately to note” his particular viewpoint on a broad constitutional question that motivated his vote. See also Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 502 (1989), where Scalia again concurs with the majority opinion but “write[s] separately only to make express what seems to [him] implicit in [the Court's] analysis.”

(16.) U.S. v. Virginia, at 601.

(17.) See page 74 for a full discussion of McCleskey v. Kemp.

(18.) See, for example, Hernandez v. New York, 500 U.S. 352 (1991), a case in which the striking of jurors because they were Latino was challenged as a violation of the equal‐protection clause. In the opinion, Justice O'Connor reaffirmed her belief that an equal‐protection claim must be based on discriminatory purpose and not just on a disproportionate impact on any one group. O'Connor also joined the majority opinion in U.S. v. Armstrong, 517 U.S. 456 (1996), where the Court stated that a claim for violation of equal protection because of selective prosecution based on race must be supported by evidence of both discriminatory effect and discriminatory purpose.

(p.239)

(19.) U.S. v. Hays, 515 U.S. 737 (1995).

(20.) In a 1995 equal‐protection case (Adarand v. Pena, 515 U.S. 200, 237 (1995)), she said:

Because our decision today alters the playing field in some important respects, we think it best to remand the case to the lower courts for further consideration in light of the principles we have announced.

In Lanier v. South Carolina, 474 U.S. 25, 26 (1985), a criminal case regarding the voluntariness of a confession, O'Connor concurred with the per curiam majority opinion to remand:

I believe the [state court of appeals] on remand can consider the timing, frequency, and likely effect of whatever Miranda warnings were given to petitioner as factors relevant to the question whether, if petitioner was illegally arrested, his subsequent confession was tainted by the illegal arrest.

See also Eddings v. Oklahoma, 455 U.S. 104, 119 (1982), a death penalty case in which O'Connor defended the majority decision to remand:

I disagree with the suggestion in the dissent that remanding this case may serve no useful purpose. . . . [W]e may not speculate as to whether the trial judge and the [state] Court of Criminal Appeals actually considered all of the mitigating factors and found them insufficient to offset the aggravating circumstances, or whether the difference between this Court's opinion and the trial court's treatment of the petitioner's evidence is “purely a matter of semantics,” as suggested by the dissent.

In light of such statements, Gore lawyers were hoping O'Connor might—at the very least—vote for a remand, as Justices Souter and Breyer did. But instead she joined an opinion that concluded that “remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until Dec. 18 . . . could not be part of an ‘appropriate order’ ” (per curiam, Bush v. Gore (2000)).

On the issue of whether to stay the hand count pending full briefing, argument, and decision, she also departed from her usual reluctance to grant stays, even in capital cases. See McFarland v. Scott, 512 U.S. 849 (1994), in which O'Connor concurred in part and dissented in part. McFarland was a death penalty case in which the defendant requested a lawyer for a postconviction habeas corpus petition. He also petitioned for a stay of his execution date, so that his court‐appointed attorney could prepare his habeas corpus petition. O'Connor agreed that the defendant was entitled to representation while pursuing his habeas corpus petition, but disagreed that he was entitled to a stay of his execution date while that attorney was preparing to file the petition. She would have Congress amend its statutes to clear up the “clumsiness of its handiwork” and make obvious its intent to allow stays in this situation. She also shifts the blame to the defendant, who should file “a prompt request for appointment of counsel well in advance of the scheduled execution” (McFarland at 863). For some recent examples, see Miller v. Arizona, 121 S. Ct. 445 (2000); Poland v. (p.240) Arizona, 529 U.S. 1013 (2000); Calambro v. Ignacio (526 U.S. 1048 (1999); LeGrand v. Arizona, 526 U.S. 1001 (1999); and Gerlaugh v. Stewart, 525 U.S. 1131 (1999), in all of which the Court denied an application to O'Connor for the granting of a stay of execution upon her referral to the Court. Consider also that O'Connor joined the Court's majority opinion in Clinton v. Jones, 520 U.S. 681 (1997), where the Court refused to grant President Clinton a stay of the lawsuit against him brought by Paula Jones.

(21.) Davis v. Bandemer, 478 U.S. 109 (1986), O'Connor concurring. On the issue of deferring to state courts' judgment, consider O'Connor's statement in her majority opinion in Engle v. Isaac, 456 U.S. 107, 128 n. 33 (1982):

State courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover . . . new constitutional commands. . . . In an individual case, the significance of this frustration may pale beside the need to remedy a constitutional violation. Over the long term, however, federal intrusions may seriously undermine the morale of our state judges.

See also Gregory v. Ashcroft, 501 U.S. 452 (1991), where O'Connor, writing for the majority, held that a Missouri state law establishing a mandatory retirement age for judges did not violate the federal Age Discrimination Act because Congress and the federal courts must respect state sovereignty; Coleman v. Thompson, 501 U.S. 722 (1991), where O'Connor, again writing for the majority, held that the federal courts should not review a criminal defendant's federal petition for habeas corpus unless and until that defendant has exhausted all possible state remedies, thereby giving complete deference to state courts to resolve all state issues; and Sandra D. O'Connor, “Trends in the Relationship Between the Federal and State Courts from the Perspective of a State Court Judge,” 22 William and Mary L. Rev. 801, 814–15 (1981), written while she was a judge on the Arizona Court of Appeals, in which she argues that “[i]t is a step in the right direction to defer to the state courts and give finality to their judgments on federal constitutional questions where a full and fair adjudication has been given in the state court.”

(22.) Deadlock: The Inside Story of America's Closest Election, by the Political Staff of the Washington Post (Public Affairs, 2001), 163.

(23.) To be sure, the rule of precedent is neither rigid nor absolute, especially in the Supreme Court. While lower courts are bound by the precedents of the nation's highest court, the Court itself has the power—the freedom—to depart from its own precedents and to overrule a prior decision. But it is expected to do so only rarely and for compelling reasons, which the justices are obliged to explain and defend. A court that promiscuously ignores precedents loses respect. A justice who is perceived to be manipulating precedent in order to get the law to come out in favor of his or her personal or political predilections will not be respected. It is for that reason that (p.241) many justices, including some who joined the majority opinion in this case, have decided to follow precedents with which they personally disagree. In this case, the majority justices consciously violated the salutary approach to precedent in three different but overlapping ways. First, they ignored past precedent with which they generally agreed, but which would have kept them out of this case. Second, they sent a not‐so‐subtle message that they did not intend to follow the precedent established by this case in future cases, and that they did not regard this ad hoc precedent as binding on lower courts. Third, they so miscited past precedents, and wrenched them so out of their historical context, as to make a mockery out of the rule of precedent and the requirement that if past precedent is to be overruled, the Court must provide honest and persuasive reasons for breaking with the past.

(24.) Adarand v. Pena at 231 (quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)).

(25.) In the Adarand case, O'Connor—writing for the majority—overruled a recent case that had failed to follow the precedent established by earlier cases. In doing so, it used the equal‐protection clause to make it more difficult for government to enact affirmative‐action programs. It remanded the case to the lower courts “for further consideration”—something it refused to do in the Florida election case.

(26.) Dickerson v. U.S., 530 U.S. 428 (2000).

(27.) Planned Parenthood v. Casey.

(28.) Over the last ten years, Kennedy has voted with Rehnquist 81.3 percent of the time, with Scalia 74.1 percent of the time, and with Thomas 74.2 percent of the time. He has voted with O'Connor 77.4 percent of the time. And he has voted with Breyer 68.1 percent of the time, Stevens 56.7 percent, Ginsburg 68.9 percent, and Souter 72.6 percent. “The Supreme Court 1999 Term, the Supreme Court in the Nineties: A Statistical Retrospective,” 114 Harv. L. Rev. 402, 406 table IIB (2000).

(29.) Robert Reinhold, “Restrained Pragmatist: Anthony M. Kennedy,” New York Times, Nov. 12, 1987.

(30.) Ibid.

(31.) Anthony Kennedy at his confirmation hearing. Chicago Tribune, Dec. 2, 1987, 2.

(32.) See, for example, U.S. v. Lopez, 514 U.S. 549, 573 (199), Kennedy concurring: “Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature”; Pacific Mut. Life Ins. Co. v. Haslip, Kennedy concurring; and Missouri v. Jenkins, 495 U.S. 33, 58 (1990), Kennedy concurring, in which Kennedy attacked the majority opinion's suggestion that a federal court could require a school district to levy taxes to fund school desegregation, refused to embrace the Court's “expansion of power in the Federal Judiciary beyond all precedent” because it “disregards fundamental precepts for the democratic control (p.242) of public institutions,” and affirmatively recited the Court's holding in United States v. County of Macon, 99 U.S. 582, 591 (1879), that “[w]e have no power by mandamus to compel a municipal corporation to levy a tax which the law does not authorize. We cannot create new rights or confer new powers. All we can do is to bring existing powers into operation.”

(33.) Pacific Mutual Life Ins. Co. v. Haslip. Kennedy then went on to cite the precedents of capital cases:

  • As we have said in the capital sentencing context:

    “It is not surprising that such collective judgments often are difficult to explain. But the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury's function to make the difficult and uniquely human judgments that defy codification and that ‘build discretion, equity, and flexibility into a legal system.’ ” McCleskey v. Kemp, 481 U.S. 279, 311 (1987) (quoting H. Kalven & H. Zeisel, The American Jury 498 (1966)).

(34.) The per curiam opinion does seek to distinguish people from things, but as pointed out in Chapter 2, even with regard to decisions made by people, more uniformity can always be achieved.

(35.) See also City of Boerne v. Flores, 521 U.S. 507 (1997); Hubbard v. U.S., 514 U.S. 695 (1995).

(36.) New York Times, Feb. 20, 2001, A18.

(37.) When Rehnquist was a law clerk to Justice Robert Jackson in 1952, he wrote a memorandum to his boss in favor of state‐supported segregation in the public schools: “I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by my ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed. Snyder at 441.” Plessy had ruled that the equal‐protection clause permitted state‐supported segregation, whose purpose was to keep the races separate, so long as the segregated facilities were “separate but equal”—an obvious impossibility, given our relatively recent history of slavery. In another memorandum, he advised his boss that “[i]t is about time the Court faced the fact that the white people in the South don't like colored people” (see David G. Savage, “The Rehnquist Court: Bill Rehnquist Was Once Considered an Extremist. Now His Views Almost Always Become the Law of the Land,” Los Angeles Times Magazine, Sept. 29, 1991, 12). Rehnquist concluded that “the Constitution does not prevent the majority from banding together, nor does it attain success in this effort” (see George Lardner Jr. and Saundra Saperstein, “A Chief Justice‐Designate with High Ambitions,” Washington Post, July 6, 1986). In other words, if the majority doesn't like a particular racial or ethnic minority, it is entirely constitutional to segregate them.

When one of these damning memoranda surfaced during the confirmation process, Rehnquist had the audacity to deny that its contents reflected (p.243) his own views, attributing them instead to the dead justice for whom he had worked (see Stuart Taylor Jr., “Opposition to Rehnquist Nomination Hardens as 2 New Witnesses Emerge,” New York Times, July 27, 1986). But the late Justice Jackson's longtime secretary blasted Rehnquist for having “smeared the reputation of a great justice” who did not harbor such segregationist views, especially after serving as the chief prosecutor at the Nuremberg war crimes trials and witnessing at first hand the consequences of racism and segregation (see Ronald J. Ostrow and Robert L. Jackson, “Bias, Candor Again Issues as Rehnquist Faces Senate,” Los Angeles Times, July 29, 1986). Several of Rehnquist's fellow law clerks were also outraged by his blame‐the‐dead‐man defense and confirmed that the segregationist views expressed in the memoranda were typical of those expressed at that time by Rehnquist.

A decade and a half later, when Rehnquist was promoted to chief justice, several of these issues reemerged, along with some new ones. It was discovered that Rehnquist owned a home with a restrictive covenant barring the leasing or sale of his Vermont house to “any member of the Hebrew race” (see “Justice Knew of Deed in '74,” New York Times, Aug. 6, 1986). The Senate Judiciary Committee also revisited Rehnquist's early history as an enforcer for the “Republican Party Ballot Security Program,” which was a euphemism for a heavy‐handed effort—largely successful—to harass minority voters away from the polls during 1960s elections (see “Rehnquist on Hot Seat: Kennedy Cites Race Ban on Home Deed,” Chicago Tribune, Aug. 1, 1986). Rehnquist's testimony about his bigoted past—he denied or minimized nearly every charge—was so questionable that the New York Times editorialized as follows: “A Chief Justice can be less than inspiring or less than an ardent civil libertarian, but he cannot be less than a champion of truth” (see “The Past in Mr. Rehnquist's Future,” (editorial) New York Times, Aug. 3, 1986). What the polite editors of the Times were saying, in their understated language, was what several senators had already concluded, namely, that Rehnquist had lied under oath at his confirmation hearings, in an effort to deny his bigoted background.

Several law professors used even stronger language: The chief justice of the United States had committed “perjury.” See Michael E. Parrish, “The Chief Justice Plays the Race Card,” San Diego Union‐Tribune, Dec. 15, 2000, quoting University of Chicago law professor Philip Kurland as stating that “Rehnquist did not tell the truth to the Judiciary Committee on his first nomination and did not tell the truth on the second one either”; Joseph L. Rauh Jr., “Historical Perspectives: An Unabashed Liberal Looks at a Half‐Century of the Supreme Court,” 69 N.C. L. Rev. 213, 242 (1990), in which the author recounts testifying at Rehnquist's confirmation hearing about the 1952 memo and concludes that “[t]he evidence appears incontestable that he was not [telling the truth]”; Brad Snyder, “How the Conservatives Canonized Brown v. Board of Education,” 52 Rutgers L. (p.244) Rev. 383, 451 (2000), citing the following legal scholars who have concluded that Rehnquist's account cannot be totally accurate:

Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (1976) AT 603–10 & n.* (casting doubt on Rehnquist's account); Gregory S. Chernack, The Clash of Two Worlds: Robert H. Jackson, Institutional Pragmatism, and Brown, 72 Temple L. Rev. 51, 55 n. 21 (1999) (examining Justice Jackson's jurisprudence and the dilemma that Brown posed for Justice Jackson); Bernard Schwartz, Chief Justice Rehnquist, Justice Jackson, and the Brown Case, 1988 Sup. Ct. Rev. 245, 245–67 (giving weight to Justice Jackson's unpublished draft opinion in Brown, stating that segregation was unconstitutional, and concluding that the memo in question stated Rehnquist's views); Mark Tushnet and Katya Lezin, What Really Happened in Brown v. Board of Education, 91 Colum. L. Rev. 1867, 1880, 1911 n. 190 (1991) (arguing that Jackson was “deeply ambivalent” about race and that Rehnquist's account may be partially truthful).

See also Tinsley E. Yarbrough, The Rehnquist Court and the Constitution (Oxford University Press, 2000), 1–6.

(38.) Recent important cases in which the Supreme Court used strict scrutiny analysis to strike down state and federal preferences for racial minorities include Adarand v. Pena; City of Richmond v. Croson, 488 U.S. 469 (1989); and Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986).

(39.) Sugarman v. Dougall, 413 U.S. 634, 649–50, 657 (1973). In this case, Rehnquist was the sole dissenter from the opinion holding that discrimination against aliens requires strict scrutiny under the equal‐protection clause.

(40.) In dissenting from a decision that declared state discrimination against illegitimate children unconstitutional under the equal‐protection clause (Trimble v. Gordon, 430 U.S. 762, 785 (1977)), Justice Rehnquist (then still an associate justice) offered the following interpretation of that clause:

Every law enacted, unless it applies to all persons at all times and in all places, inevitably imposes sanctions upon some and declines to impose the same sanctions on others. But these inevitable concomitants of legislation have little or nothing to do with the Equal Protection Clause of the Fourteenth Amendment, unless they employ means of sorting people which the draftsmen of the Amendment sought to prohibit. I had thought that cases like McGowan, in which the Court, speaking through Mr. Chief Justice Warren, said that “[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”

(41.) Califano v. Boles, 443 U.S. 282, 284 (1979), applying this principle in a case approving the limitation of certain Social Security benefits to married women, thus creating a discriminatory effect on illegitimate children.

(p.245)

(42.) Trimble v. Gordon, 430 U.S. 762 (1977).

(43.) See, for example, Bowers v. Hardwick, 478 U.S. 186, 190 (1986), in which Rehnquist joins Justice White's majority opinion upholding the constitutionality of a state law criminalizing sodomy because “many states . . . still make such conduct illegal and have done so for a very long time”; Jones v. U.S., 526 U.S. 227, 254 (1999), Kennedy dissenting, in which Rehnquist joins Kennedy's dissent arguing that Congress has the authority to make bodily harm an element in a carjacking statute and concluding that “the majority's sweeping constitutional discussion casts doubt on sentencing practices and assumptions followed not only in the federal system but also in many States. Thus, among other unsettling consequences, today's decision intrudes upon legitimate and vital state interests, upsetting the proper federal balance.”

(44.) Fry v. U.S., 421 U.S. 542, 550 (1975) (quoting Maryland v. Wirtz, 392 U.S. 183, 205 (1968), Rehnquist dissenting.

(45.) U.S. v. Lopez. See also National League of Cities v. Usefy, 426 U.S. 833; Michael Dorf, “Instrumental and Non‐Instrumental Federalism,” 28 Rutgers L. J. 825 (1998).

(46.) William H. Rehnquist, Grand Inquests (Morrow 1992), 10.

(47.) M.L.B. v. S.L.U., 519 U.S. 102 (1996).

(48.) FCC v. Beach Communications, 508 U.S. 307 (1993), 313–14, quoting from Vance v. Bradley, 440 U.S. 93, 97 (1979).

(49.) Holder v. Hall, 512 U.S. 874, 897–902 (1994), Thomas concurring (footnote omitted).

(50.) New York v. United States, 505 U.S. 144, 187–88 (1992).

(51.) Professor Dorf lists Thomas, along with Rehnquist, as members of the hard anti‐Federalist bloc. See Dorf, “Instrumental and Non‐Instrumental Federalism,” 826.

(52.) U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 849 (1995), Thomas dissenting.

(53.) McPherson v. Blacker, 146 U.S. 1, 25 (emphasis added), quoted by Justice Stevens in his dissenting opinion in Bush v. Gore.

(54.) Scalia in Planned Parenthood v. Casey. Although Scalia's statement was made in the context of the abortion controversy, it aptly characterizes the issues at stake in election cases as well.

(55.) See Richard Posner, “The Triumph of Expedience,” Harper's, May 2001, 39.

(56.) Quoted in Alan M. Dershowitz, “Of Justices and ‘Philosophies,’ ” New York Times, Oct. 24, 1971.

(57.) They also may have shared an outrage at the Florida Supreme Court for acting in what they believed was a partisan manner, but this outrage appears quite selective, and I doubt it would have moved the justices if the Florida Supreme Court had shown partisanship toward Bush. In any event, outrage—even justified outrage—is not a proper basis for Supreme (p.246) Court intervention into a matter which the state has constitutional authority.

(58.) Christopher Marquis, “Job of Thomas's Wife Raises Conflict of Interest Questions,” New York Times, Dec. 12, 2000; Bob Woodward and Charles Lane, “Scalia Takes a Leading Role in Case,” Washington Post, Dec. 11, 2000.

(59.) Evan Thomas and Michael Isikoff, “The Truth Behind the Pillars,” Newsweek, Dec. 25, 2000.

(60.) Edward Lazarus, Findlaw, Feb. 16, 2001. The other conservative justice Lazarus was apparently referring to was Chief Justice Rehnquist. See page 169.

(61.) See Daniel Schorr, “The Supreme Fix Was In,” Christian Science Monitor, Dec. 15, 2000; Mary McGrory, “Supreme Travesty of Justice,” Washington Post, Dec. 14, 2000.

(62.) J. O. Brown, W. E. Farmer, and M. E. O'Connell, M.E., “The Rugged Feminism of Sandra Day O'Connor,” 32 Indiana L. Rev. 1219, 1222 (1999).

(63.) Washington Post, July 8, 1981, A1.

(64.) Justice O'Connor served on the Superior Court of Arizona (the trial court) from 1975 to 1979, before being appointed to the Arizona Court of Appeals.

(65.) See Brown, Farmer, and O'Connell, “The Rugged Feminism of Sandra Day O'Connor,” 1222 n. 26.

(66.) See, for example, Edwin M. Yoder Jr., “Justice O'Connor's Unfortunate Letter,” Washington Post, Mar. 19, 1989; “The ‘Christian Nation’ Fallacy,” St. Petersburg Times, Mar. 17, 1989; and Al Kamen, “Justice O'Connor to Brief GOP Donors at High Court; ABA Code Bars Speeches to Political Groups,” Washington Post, May 1, 1987. See generally, Alan M. Dershowitz, “Justice O'Connor's Second Indiscretion,” New York Times, April 2, 1989.

(67.) O'Connor's reply included the following: “You wrote me recently to inquire about any holdings of this Court to the effect that this is a Christian Nation. There are statements to such effect in the following opinions: Church of the Holy Trinity v. United States. Zorach v. Clauson. McGowan v. Maryland.” In addition to the impropriety of a justice lending the Court's judicial imprimatur to a controversial political proposal, Justice O'Connor's case citations are just plain wrong. The last two cases do not contain any statements of support for the claim that “this is a Christian Nation.” Indeed, their entire thrust is to the contrary. The first case, decided in 1892, does contain such a statement in passing, though certainly not a “holding,” since the case involved an interpretation of an immigration statute, not a construction of the First Amendment's prohibition against the establishment of religion. No Court decision over the last ninety‐seven years lends any support to the claim that we are a “Christian Nation.” There are statements that we are a “religious people,” (p.247) but they are invariably followed by assurance of “no partiality to any one group.”

(68.) Not only was Justice O'Connor's letter used in that partisan political campaign to increase the number of Republican voters, but its miscitation of cases became the basis of the religiously exclusive resolution enacted by the Arizona Republican Party. That resolution begins, “Whereas the Supreme Court of the United States has three holdings to the effect that this is a Christian nation . . . ” It then cites the decisions provided by Justice O'Connor and declares that we are “a Christian nation” and that the Constitution created “a republic based upon the absolute laws of the Bible, not a democracy.”

(69.) Tom Wicker, “Sage Advice from R.N.,” New York Times, Apr. 15, 1988.

(70.) Robert Novak, “Court That Really Swings,” Chicago Sun‐Times, Dec. 21, 2000, 39.

(71.) Even that would not constitute a complete defense, since it is improper for a judge to participate in any case where she may have a personal interest in the outcome, even if that interest has no effect on her decision.

(72.) Elizabeth Olson, “O'Connor: Poise, Stamina and Grit,” Washington News, Sept. 12, 1981.

(73.) Neil A. Lewis, “Democrats Readying for Judicial Fight,” New York Times, May 1, 2001.

(74.) The former clerk requested anonymity. His information was corroborated by the Novak column cited infra note 75.

(75.) Novak, “Court That Really Swings.”

(76.) Robert Novak, “Sniping at Cox's Success,” New York Post, May 30, 1999.

(77.) Jeffrey Rosen, “In Lieu of Manners,” New York Times, Feb. 4, 2001.

(78.) He has been called “a knee‐jerk right‐winger” by law professor Pamela Karlan. He has “carried an aura of partisanship” from the beginning of his tenure on the Court (Yarbrough, 44).

(79.) Clarence Thomas's Senate confirmation hearings became a nationally televised spectacle after Anita Hill, a former employee, accused him of sexually harassing her. Thomas's denial and Hill's subsequent graphic testimony nearly derailed his nomination to the Supreme Court, although he was eventually confirmed by the full Senate in a vote of 52–48.

(80.) “Senators Against: Questions About Charges, Qualifications,” Washington Post, Oct. 16, 1991.

(81.) Reported in Frank J. Murray, “Election Could Reshape Court,” Washington Post, Oct. 16, 2000.

(82.) Two related vignettes, reported in David Savage, “In the Matter of Justice” Los Angeles Times, Oct. 9, 1994, reveal how differently Thomas can act to friends and enemies even in small matters. Senator John C. Danforth, his biggest supporter during the confirmation hearings, called Thomas and asked him to meet with a group of his summer interns. “He had them come over the next day. He took time with every one of them. . . . That's the real Clarence Thomas,” said Danforth. William L. Robinson, the dean (p.248) of the District of Columbia Law School, also wanted to bring some students to meet his old friend. But Robinson, a black civil rights lawyer, had disagreed with Thomas about some legal issues. Robinson called Thomas's chambers repeatedly. “He wouldn't even call me back.” That, too, is the real Clarence Thomas. It depends on which list your name appears.

Thomas told an interviewer that he roots for the Dallas Cowboys because they are hated by Washington fans, and he also likes the Los Angeles Raiders “because everybody hates them.” He is on record as believing that those who disagree with him hate him. He himself seems to be consumed by hatred, despite his fervent Christianity. He played his favorite song, “Onward, Christian Soldiers,” during recesses in his confirmation hearings.

(83.) Yarbrough, The Rehnquist Court and the Constitution, 44.

(84.) David Savage, “In the Matter of Justice” Los Angeles Times, Oct. 9, 1994.

(85.) According to Professor Mark Tushnet of Georgetown University Law Center, Thomas has put in the “least impressive performance of any justice since Whitaker”—a marginally competent justice who resigned in his fifth year upon realizing he was not up to the job. Thomas quickly became a staunch opponent of a woman's right to choose abortion, leading many observers to conclude that he had fixed views on this issue long before he was appointed as a justice. Yet during his confirmation hearing, he swore that “I cannot remember personally engaging in” any discussion of Roe v. Wade. As Jeffrey Toobin observed in “The Burden of Clarence Thomas,” New Yorker, Sept. 27, 1993, 47.

Since it was the most famous Supreme Court case of his generation, this statement drew widespread skepticism at the time. In any event, it appears clear that Thomas had made up his mind about the fate of Roe before he arrived on the Court; without even discussing the issue with his law clerks, he decided that the case should be overturned. “There was no point in talking about Casey,” the source says. “There was no doubt whatsoever on where he was coming out. There was no discussion at all.” Thomas joined Justice Scalia's dissenting opinion, which urged that Roe be overturned.

This has led Professor Pamela Karlan to conclude: “I think he perjured himself about Roe” (Savage, “In the Matter of Justice,” Los Angeles Times, Oct. 9, 1994).

There have been other allegations of untruthfulness regarding Thomas, beyond his testimony about Roe v. Wade and his denial of Anita Hill's allegations, including that he lied in a highly publicized speech about his own sister being a lazy, undeserving “welfare queen”; see Clarence Page, “Thomas's Sister's Life Gives Lie to His Welfare Fable,” Orlando Sentinel‐Tribune, July 25, 1991. Thomas's assurance to schoolchildren in the wake of Bush v. Gore that partisan politics played no role in the decision should be evaluated against this history.

(86.) The primary financial backer of the Claremont Institute—whose previous speakers included Rush Limbaugh and Newt Gingrich—was Richard Mellon (p.249) Scaife, a right‐wing Clinton‐hater who had financed an investigation into Clinton's activities. See Joan Lowy, “Thomas Urged Not to Lecture to Conservatives,” Pittsburgh Post‐Gazette, Feb. 2, 1999.

(87.) David G. Savage, “Thomas Urged to Cancel Speech to Conservatives,” Los Angeles Times, Feb. 2, 1999. Thomas postponed the speech for three weeks.

(88.) Shortly after being sworn in, he raised eyebrows among his fellow justices when his wife threw a party for him at the high court with an invitation list that read like a who's who of Republican politics. Ibid.

(89.) These include the Georgia Public Policy Foundation, National Empowerment Television, Concerned Women for America, and other stridently right‐wing Republican groups.

(90.) Fiftieth Anniversary Tribute to the Free Congress Foundation, April 26, 1993.

(91.) Two such cases are Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), and Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993); see generally Toobin, “The Burden of Clarence Thomas.”

(92.) Thomas's wife is a full‐time Republican activist, having worked for the House Republican Conference. In 1996, she was involved in digging up dirt on President Clinton and served as an aide to House Republican leader Dick Armey. Despite her husband's nonpartisan job, she “remains in the thick of the fight,” according to an associate, and always “wants to bring the battle to the Democrats” and “go the extra mile” (Toobin, “The Burden of Clarence Thomas”; see also Jess Bravin et al., “Bush v. Gore Has Personal Angle for Some Supreme Court Justices,” Wall Street Journal, Dec. 12, 2000).

The couple's life has been described as “one of shared, brooding isolation.” Or, as Thomas himself put it: “We travel everywhere together like a pair of nuns.” This includes driving his wife to her political job every morning. (Jeffrey Toobin, “The Burden of Clarence Thomas,” New Yorker, Sept. 27, 1993)

(93.) A federal appellate judge, Gilbert S. Merritt of the United States Court of Appeals for the Sixth Circuit, said he saw a serious conflict of interest for Justice Thomas in deciding a case that could throw the election to Governor Bush.

“The spouse has obviously got a substantial interest that could be affected by the outcome,” he said in an interview from his home in Nashville. “You should disqualify yourself. I think he'd be subject to some kind of investigation in the Senate.”

Judge Merritt, who has long association with the Gore family and was considered a leading contender for the Supreme Court early in the Clinton Administration, said he would not launch a formal complaint against Justice Thomas.

(p.250)

But he urged Justice Thomas to remove himself from the case in order to prevent any violation of a federal law—he cited Section 455 of Title 28 of the United States Code, “Disqualification of Justices, Judges or Magistrates”—that requires court officers to excuse themselves if a spouse has “an interest that could be substantially affected by the outcome of the proceeding.”

Judge Merritt offered his views about Justice Thomas after someone in the Gore campaign provided the New York Times with his name and telephone number. Judge Merritt said he had had no direct contact with the Gore campaign.

(Christopher Marquis, “Challenging a Justice,” New York Times, Dec. 12, 2000)

(94.) Toobin, “The Burden of Clarence Thomas.”

(95.) Ibid.

(96.) “I was drunk with anger, out of control with hostility toward what I saw as the oppression around me,” he told Holy Cross students (Savage, “In the Matter of Justice Thomas,” Los Angeles Times, Oct. 9, 1994). He is a man given to extremes in his politics and his emotions—and this was before the contentious confirmation hearing, which he characterized as a “high‐tech lynching” (Toobin, “The Burden of Clarence Thomas”). Former Senator John Danforth, Thomas' most ardent supporter, has reported that during the hearings “Thomas was reduced to uncontrollable fits of weeping, vomiting, hyperventilating, and writhing on the floor.” Before the Hill allegations “he suspected that people were trying to kill him.” (Yarbrough, 44)

(97.) Toobin, “The Burden of Clarence Thomas.”

(98.) Yarbrough, The Rehnquist Court and the Constitution, 44.

(99.) Toobin, 46.

(100.) During Antonin Scalia's first day on the high court bench back in 1986, he so monopolized the oral argument that Justice Lewis Powell declaimed in a stage whisper, “Do you suppose he knows the rest of us are here?” Since that time, the brash justice has established a reputation as the Supreme Court's reigning bully, interrupting oral arguments with his sharp tongue and sometimes even insulting other justices with his acid pen. He has shown “intellectual contempt for most of his colleagues.” (Yarbrough, 43) In the process, he has alienated several of his colleagues, but he remains the darling of the political right—the justice who, along with Clarence Thomas, serves as a model for future appointments by President George W. Bush.

(101.) As David Boies put it: “Justice Scalia would not have voted for Gore even if his son had been my partner.” (“Votes and Voices” symposium, Cardozo Law School, April 26, 2001)

(102.) Harper's Magazine, May 2001, 39.

(103.) A Washington Post Magazine article by Garrett Epps focused on Scalia's disappointment with Bill Clinton's election and reelection: (p.251)

By 1996 Scalia was allowing his bitterness to show. In a much‐criticized speech to a prayer breakfast in Mississippi, he cast himself in the role of the lonely religious dissenter ridiculed by a trivial, secular culture. “We must pray for the courage to endure the scorn of the sophisticated world.” And in the wake of Bill Clinton's landslide reelection that year, friends and associates of Scalia began to hint that the justice would consider a conservative draft as the Republican presidential candidate in the year 2000.

The presidential talk was far‐fetched and almost silly. But it underscored that much of Scalia's unhappiness was due to presidential politics. In 1986, when he took his seat on the court, he and other conservative jurists looked confidently forward to an unbroken string of Republican nominations to the court, which would solidify right‐wing dominance and make coalition‐building unnecessary. But in another of history's surprises, two‐party politics reemerged. Bill Clinton, not George Bush, named the last two justices. (Garrett Epps, “Nino to the Rescue,” Washington Post Magazine, Feb. 25, 2001)

(104.) Ibid.

(105.) Quoted in Henry David Rosso, ACLU: Rehnquist, Scalia Disregard Bill of Rights, U.P.I., Sept. 7, 1986.

(106.) “Court Appointees Must Be for the Constitution,” Dallas Morning News, June 29, 1986.

(107.) Scalia has pointed to his vote to strike down a flag‐burning statute as proof that his judicial philosophy is not a cover for his political preferences. He has argued that he doesn't particularly like sandal‐wearing, long‐haired flag burners. That misses the point. No one who supports freedom of speech necessarily likes all those who exercise it. By lowering the level of abstraction from support of free speech to approval of flag burning (or Nazi propaganda or pornography), Scalia makes it appear that this case caused a conflict between his personal views and the result demanded by the Constitution.

He has also pointed to his vote in a case involving the right of an accused child molester to confront his accuser but the Wall Street Journal has—commendably—made the issue of false allegations of child abuse a cause célèbre of the right.

(108.) George Lardner Jr., “Nixon on Appointing Rehnquist; On Tape, He Exults Over ‘Hard‐Right’ Nominees,” Washington Post, Oct. 30, 2000.

(109.) In an op‐ed article for the Los Angeles Times on Dec. 28, 2000, entitled “Justice May Be Blind, but It's Not Deaf,” I urged any law clerk who has information about possible improprieties by any justice to come forward and disclose it.

(110.) Second review of Florida vote is inconclusive, New York Times, May 11, 2001, A29.