Though the article was sympathetic to the five conservative justices, it disclosed an important
fact: that the five justices were planning on ruling for Bush after oral arguments on Dec. 11.
The court even sent out for Chinese food for the clerks, so the work could be completed that
night.
On Dec. 11, the legal rationale for stopping the recount was to have been that the Florida
Supreme Court had made "new law" when it referenced the state constitution in an initial
recount decision - rather than simply interpreting state statutes.
Even though this argument was highly technical, the rationale at least conformed with the
conservative principles of the five-member majority, supposedly hostile to judicial
"activism."
However, the Florida Supreme Court threw a wrench into the plan. On the evening of Dec.
11, the state court submitted a revised ruling that deleted a passing reference to the state
constitution. The revised state ruling based its reasoning entirely on state statutes that
permitted recounts in close elections.
This revised state ruling drew little attention from the press, but it created a crisis for the five
conservatives. Justices Sandra Day O'Connor and William Kennedy no longer felt they could
agree with the "new law" rationale for striking down the recount, though Justices Rehnquist,
Antonin Scalia and Clarence Thomas still would, USA Today reported.
O'Connor and Kennedy then veered off in very different direction, USA Today said. Through
the day of Dec. 12, they worked on an opinion arguing that the Florida Supreme Court had
failed to set consistent standards for the recount and that the disparate county-by-county
standards constituted a violation of the "equal protection" rules of the 14th Amendment.
This argument was quite thin and Kennedy reportedly had trouble committing it to writing.
To anyone who had followed the Florida election, it was clear that varied standards already
had been applied throughout the state. Wealthier precincts had benefited from optical voting
machines that were simple to use and eliminated nearly all errors, while poorer precincts with
many African-Americans and retired Jews were stuck with outmoded punch-card systems
with far higher error rates. Some counties had conducted manual recounts, too, and those
totals were part of the tallies giving Bush a tiny lead.
The statewide recount, even if there were slight variations of standards regarding "intent of
the voters," was designed to reduce these disparities and thus bring the results closer to
equality. Applying the "equal protection" provision, as planned by O'Connor and Kennedy,
turned the 14th Amendment on its head, guaranteeing less equality than letting the recounts
go forward.
Indeed, if one were to follow the "logic" of the O'Connor-Kennedy position, the only "fair"
conclusion would have been to throw out Florida's presidential election in total. After all,
Florida's disparate standards were being judged unconstitutional. Without some form of
recount to eliminate those disparities, the statewide results would violate the 14th
Amendment.
That, however, would have meant that Al Gore would become president because, without
Florida, Gore had a majority of the remaining electoral votes. Clearly, the five conservatives
had no intention of letting their "logic" lead to that result.
Yet possibly even more startling than the stretched logic of O'Connor-Kennedy was the
readiness of Rehnquist, Scalia and Thomas to sign on to a ruling that was almost completely at
odds with their own legal rationale for blocking the recounts.
On the night of Dec. 11, that trio was ready to bar the recount because the Florida Supreme
Court had created "new law." On Dec. 12, the same trio barred the recount because the
Florida Supreme Court had not created "new law," the establishment of precise statewide
recount standards.
The five conservatives had devised their own Catch-22. If the Florida Supreme Court set
clearer standards, that would be struck down as creating "new law." If the state court didn?t
set clearer standards, that would be struck down as violating the "equal protection" principle.
Heads Bush wins; tails Gore loses.
Or, to sum it up a bit more pithily, the Court
partisans were willing to and indeed did engage in
grasping at whatever pseudo-legal straws they required
to justify the conclusion they so desperately desired.
While simultaneously defending both sides of an issue is a fun and probably even pedagogically useful game for law school punks to play after a few beers,
one might expect the Supreme Court to confront the
pressing issues of the day on a level slightly more
sophisticated than the equivalent of parlor game doubletalk.
