How Sandra Day O’Connor’s Swing Vote Decided the 2000 Election

How Sandra Day O’Connor’s Swing Vote Decided the 2000 Election


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The inner workings of the Supreme Court aren’t usually gripping prime-time viewing. But on the evening of December 12, 2000, the Court dominated headlines as it ended one of the United States’ most contentious elections. And all eyes were on one justice: Sandra Day O’Connor.

This time it wasn’t because she was breaking boundaries—as the first woman to serve on the Supreme Court, she had smashed the glass ceiling almost 20 years before. In this case, the focus was on O’Connor’s coveted “swing vote,” a moderate political stance she used to break ties and, in the case of the contentious Bush v. Gore race, help decide elections. O’Connor’s use of her swing vote earned her a reputation as one of the Court’s most powerful justices, and on that day she was facing one of the highest stakes decisions of her career.

The term “swing vote” refers to a justice whose political views fall on the middle of the spectrum of the rest of the Supreme Court. Because such a justice could swing left or right, their vote is considered a critical tiebreaker.

Over the course of her 24-year-long career, O’Connor’s swing vote was an important one. She broke ties in a number of high-profile cases like Grutter v. Bollinger, which upheld affirmative action in higher education as constitutional, and Planned Parenthood of Southern Pennsylvania v. Casey, which upheld Roe v. Wade and a woman’s right to choose to have an abortion. And in 2000, O’Connor cast the decisive vote in what was arguably the most important case of her tenure—Bush v. Gore.

It was no ordinary lawsuit. The case tested the very stability of the American electoral system, and its winner would go on to become president of the United States. Election night 2000 was chaotic and confusing. News channels swung between declaring Democrat Al Gore and Republican George W. Bush the winners of the election.

When Bush won Florida by just 1,784 votes, the razor-thin margin prompted an automatic recount per state law. That recount shrank the margin even more, reducing Bush’s lead to a mere 327 votes. After a flurry of lawsuits, the Florida Supreme Court weighed in, ruling for manual recounts throughout the state. Bush’s legal team appealed to the Supreme Court, asking for the recounts to stop and arguing that Florida was reaching beyond its election authority.

The stakes were high—nothing less than the legitimacy of the electoral system hung in the balance. And for O’Connor, the personal stakes were high, too. A Republican, she had repeatedly said that she’d only retire if a Republican came into office during the 2000 election so that her replacement would also be a Republican. When O’Connor heard a proclamation that Gore had won the election during an election-night party, she turned away from the television in distress.

“She’s very disappointed because she was hoping to retire,” her husband reportedly told other partygoers. However, notes legal scholar Richard K. Neumann, Jr., this version of the party story is contested, with others suggesting that O’Connor was upset because the election was already being called while polls in other time zones were still open.

Regardless of this potential bias, O’Connor still had to weigh in on Florida’s decision to order manual recounts throughout the state. She took a strong anti-recount stance and joined the majority for a 7-2 ruling that the recounts violated the 14th Amendment’s Equal Protection Clause. She wrote a brief along with Justice Anthony Kennedy, objecting to what both saw as the state’s unequal treatment of the recount in different counties. O’Connor also voted with the 5-4 majority to stop the recounts, breaking a tie in an apparently contentious court. The decision effectively declared Bush president and ended a nearly two-month-long standoff over the election results.

The specifics of the Supreme Court’s inner workings will always be murky to the general public, and there’s no way to know what really motivated O’Connor to cast the deciding vote against Gore. But the Bush v. Gore decision was even more mysterious. “Nothing about this case, Bush v. Gore, No. 00-949, was ordinary,” wrote Linda Greenhouse for the New York Times. “Not its context, not its acceptance over the weekend, not the enormously accelerated schedule with argument on Monday, and not the way the decision was released to the public tonight.”

The decision sealed O’Connor’s legacy as a swing vote. (She retired in 2006.) But despite the influence she wielded in the court, O’Connor never liked the concept. “I don't like that term,” she told Fresh Air’s Terry Gross in 2013. “I never did, and it's not one that I like any better today. I don't think any justice—and I hope I was not one—would swing back and forth and just try to make decisions not based on legal principles but on where you thought the direction should go, and so I never liked that term.”

In 2013, O’Connor even expressed regret that the Supreme Court had taken on the election case at all. Like it or not, though, O’Connor's moderate political positions gave her the power to break ties, transcend disagreements, and even decide elections.

READ MORE: How the 2000 Election Came Down to a Supreme Court Decision


O’Connor had immense power as swing vote

Justice Sandra Day O'Connor, who announced her retirement Friday, was guaranteed a place in the history books when she became the first woman to serve on the Supreme Court.

But in her 24 years on the court she became far more significant than simply the first female justice. She was often the swing vote that decided high-profile cases.

Never as consistently conservative as those on the right would have liked, but sometimes providing the decisive fifth vote in cases dear to the hearts of conservatives, such as her vote in 2002 to approve Ohio's school voucher plan, O'Connor, 75, has wielded immense power in her years on the court.

Far from doctrinaire, in many cases O'Connor felt her way toward a compromise position on an ideologically fractured court.

She seemed to approach judging as she once approached her job as an Arizona legislator, sensitive to shifts in public opinion. She was the only member of the current court who had ever been elected to public office.

In a 1989 case called Penry v. Lynaugh, she wrote the majority opinion ruling that a mentally retarded murderer with the reasoning capacity of a 7-year-old could be executed.

This was not a violation of the Eighth Amendment’s prohibition of “cruel and unusual punishments” because, she said, “there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses.”

But by 2002 she had reversed her view, joining five other justices in Atkins v. Virginia in ruling that “death is not a suitable punishment for a mentally retarded criminal.”

The majority said it reached that conclusion because several states had banned execution of the mentally retarded since the 1980s and because public opinion had turned against the practice.

In one of the last dissenting opinions she wrote, O'Connor last week showed her sympathy for the property owner when faced with the power of government.

In a case testing whether the city of New London, Conn., could condemn and acquire private homes for an urban redevelopment project, O'Connor dissented when the majority of the justices backed the city. The property acquired would be turned over to a real estate developer.

As a result of the court's ruling, she said, "The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. . The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more."

The landmark case for which O’Connor may be especially remembered is her majority opinion in 2003 approving the admissions program at the University of Michigan law school, which used a race-conscious policy to aim for a “critical mass” of minorities.

After O’Connor sided with the court’s more liberal justices in the 5-4 vote to allow the use of race in the admissions policy, conservatives heaped scorn on her.

Scorn from Scalia
Justice Antonin Scalia, often an O'Connor adversary, said the "critical mass" justification "challenges even the most gullible mind" and was "a sham" to provide cover for racial discrimination.

At the conservative think tank the American Enterprise Institute, legal scholar Michael Greve predicted that the Michigan law school decision, Grutter v. Bollinger, "will join Roe v. Wade (the 1973 abortion decision) as a judicial litmus test. And Sandra Day O'Connor — unrivaled in her heartfelt desire for social consensus — will join Harry Blackmun (the author of Roe v. Wade) in the pantheon of deeply divisive justices. The decent, honorable Justice O'Connor does not deserve the vicious attacks coming her way. The fact that she has brought them on herself makes her laughable Grutter opinion only more perplexing."

"She clearly emerged as a swing vote, something that hasn't necessarily endeared her to conservatives. For example, she cast the deciding vote in the case striking down Nebraska's partial-birth abortion statute in 2000," noted Brannon Denning, professor at Cumberland School of Law at Samford University in Birmingham, Ala. "O'Connor's tendency to find a middle ground and eschew foundationalist decisions may be a function of her political experience."

She was appointed to the Arizona Senate in 1969 and was then elected to two two-year terms. In 1975, she was elected to serve as a judge on the Maricopa County Superior Court.

O'Connor's stint there led Arizona's Democratic governor, Bruce Babbitt, to select her as his first appointee to the Arizona Court of Appeals in 1980.

Less than two years later, on July 7, 1981, President Reagan fulfilled a campaign pledge by announcing that he was nominating the first woman to the Supreme Court.

Starr's key role
Columnists Rowland Evans and Robert Novak wrote a few days later that anti-abortion activists were "stunned" by O’Connor’s votes as a legislator in favor of abortion rights.

Evans and Novak reported that "a hurriedly prepared, error-filled memo by a young Justice Department lawyer convinced President Reagan to go through with nominating Judge Sandra O’Connor, even at grave political risk."

The young lawyer’s name: Kenneth Starr, the man who would 18 years later serve as independent counsel in the investigation of President Clinton.

During her confirmation hearings, O’Connor said her vote as a legislator to decriminalize abortion had been a mistake. But she refused to tell the Judiciary Committee how she would vote on abortion cases if any came before the court.

In a 1983 case, O'Connor dissented when the majority of justices voted to strike down an Akron, Ohio, ordinance that prohibited a doctor from performing an abortion on a minor under the age of 15 without a court order or the consent of one of her parents.

O'Connor criticized the Roe v. Wade decision that had legalized abortion nationwide, calling Roe's trimester approach "completely unworkable" and adding that "the state's interest in protecting potential human life exists throughout the pregnancy," not only after the fetus becomes able to survive outside the mother's womb, as the Roe decision had ruled.

Critical of Roe decision
The Roe decision had divided pregnancy into three trimesters, each with differing levels of permissible state regulation.

"The Roe framework," O'Connor said, "is clearly on a collision course with itself." Advances in neonatal treatment were pushing the fetus's ability to survive outside the womb "further back toward conception."

At that point in her career on the court, O'Connor was willing to permit restrictions on abortion so long as they did not impose "an undue burden" or create "absolute obstacles" to a woman's ability to get an abortion.

In a 1986 case in which a five-justice majority struck down Pennsylvania's abortion law, O'Connor complained that the court was going too far in preventing states from restricting abortion. She said it was "painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court" when it involved an attempt to regulate abortion.

But over the next six years O'Connor changed her mind.

In the 1992 case Planned Parenthood v. Casey, O'Connor joined forces with Justice Anthony Kennedy, a Reagan appointee, and Justice David Souter, who'd been appointed to the court by George Bush in 1990, to declare that "the essential holding of Roe v. Wade should be retained."

Together with pro-Roe Justices John Paul Stevens and Harry Blackmun, the O'Connor-Kennedy-Souter trio supplied the five votes to uphold Roe.

Shift on abortion
O'Connor and her allies said, "An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions."

The trio hinted that they thought Roe v. Wade might have been wrongly decided but they would stick by it: "A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision."

In the Casey decision, the court adopted O'Connor's notion of an "undue burden" test to determine whether abortion regulations would pass muster. But it left the meaning of "undue burden" vague, to be decided by judges on a case-by-case basis.

Scalia was sardonic in his attack on O'Connor's apparent change of heart, mentioning her several times by name in his dissenting opinion.

O'Connor's "undue burden" test, Scalia charged, was "unprincipled" and "will prove hopelessly unworkable in practice." He denounced O'Connor and the others in the majority for what he called their "almost czarist arrogance" in ruling that the Roe decision must not be overturned.

Childhood on a cattle ranch
O’Connor was born in El Paso, Texas, on March 26, 1930. She grew up on a cattle ranch that her grandfather had established in 1880 on the Arizona-New Mexico border.

O'Connor, her sister and her brother spent their childhood riding horses, tending livestock and keeping pets such as a bobcat.

In her memoir, "Lazy B," O'Connor said, "The value system we learned was simple and unsophisticated and the product of necessity. What counted was competence and the ability to do whatever was required to maintain the ranch operation in good working order. . Verbal skills were less important than the ability to know and understand how things work in the physical world."

She attended Stanford University and its law school, where one of her classmates was her future colleague, William Rehnquist.


Sandra Day O’Connor, First Female Justice and Moderate Swing Vote, Retires

O’Connor’s decision to leave creates the first opening on the court in 11 years. Appointed by Ronald Reagan in 1981, O’Connor was the first woman to serve on the Supreme Court and in recent years emerged as a critical swing vote in many of the court’s narrowly decided opinions on issues ranging from abortion and the death penalty to limiting campaign donations.

Although much of the public speculation had focused on ailing Chief Justice William Rehnquist, O’Connor’s announcement, made public in a brief statement, took many by surprise.

“This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor,” her statement read. “It has been a great privilege indeed to have served as a member of the court for 24 terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.”

President Bush hailed her as a “patriot” and a jurist of “great intellect, wisdom and personal decency.”

“America is proud of Justice O’Connor’s distinguished service,” Mr. Bush said. “She has been a discerning and conscientious judge and a public servant of complete integrity.”

The president also said he had ordered his staff to prepare a list of possible candidates to replace O’Connor.

He pledged that his choice would be one who will “faithfully interpret the Constitution and the laws of our country” and urged the Senate to confirm his choice before the court reconvenes in October.

“The nation deserves and I will select a Supreme Court justice that Americans can be proud of. The nation also deserves a dignified process of confirmation in the United States Senate, characterized by fair treatment, a fair hearing and a fair vote,” he said.

White House officials later said the president would not nominate a replacement before he returns from a trip to Europe on July 8.

When President Reagan tapped the Arizona Appeals Court justice to the nation’s highest court, he was fulfilling a promise he had made during his presidential campaign to appoint a woman to the court. But for O’Connor, she recognized the pressure of role she had been handed.

“My concern was whether I could do the job of a justice well enough to convince the nation that my appointment was the right move,” the Associated Press quoted her as saying at a law school in 2000. “If I stumbled badly in doing the job, I think it would have made life more difficult for women, and that was a great concern of mine and still is.”

Her role evolved over the years, from one of the court’s more conservative voices to one of moderation. She often became the deciding justice in some of the court’s most polarized decisions, joining the majority of the more conservative justices who decided to end the 2000 recount that handed the election to then-Gov. George W. Bush, but backing the majority of liberal justices in allowing abortions when the woman’s health is endangered.

O’Connor saw herself and her eight fellow justices as something akin to nine firefighters.

“When (someone) lights a fire, we invariably are asked to attend to the blaze. We may arrive at the scene a few years later,” she said.

Like many members of the court, she rarely spoke in public and at times appeared to regret the very public life she has led.

“I had never expected or aspired to be a Supreme Court justice. My first year on the court made me long at times for obscurity,” the AP quoted her as once saying.


Justice Sandra Day O'Connor Retires

The text of Sandra Day O'Connor's retirement letter to President Bush:

This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States

effective upon the nomination and confirmation of my successor. It

has been a great privilege, indeed, to have served as a member of

the court for 24 terms. I will leave it with enormous respect for

the integrity of the court and its role under our constitutional

In 1981, Sandra Day O'Connor takes the oath of office as the nation's first woman Supreme Court justice. Corbis hide caption

Related NPR Stories

Sandra Day O'Connor announces her retirement from the Supreme Court. O'Connor served 24 terms after President Ronald Reagan made her the first woman justice.

The 75-year-old justice has been the moderate center of the court for years, voting sometimes with the conservative wing of the court, and sometimes with the liberals. Experts predict that her role as the swing vote in many decisions will intensify the debate over her replacement.

O'Connor informed President Bush of her decision in a letter, delivered to the White House Friday morning. The president later praised O'Connor for her service on the Supreme Court bench, citing her "great intellect, wisdom and personal decency."

Born in Texas to a family of ranchers, O'Connor moved from a state judicial position in Arizona to serve on the nation's highest court. She persevered even through a bout with breast cancer. For a year, she wore a wig, looked drained and wan, but O'Connor never missed a court day.

During her 24-year tenure, O'Connor often cast the deciding vote in cases involving abortion, affirmative action, the separation of church and state, states rights, and of course, in the case that decided the 2000 Bush-Gore election.

In the enemy combatant cases of the court's last term, Justice O'Connor wrote the opinion declaring that a state of war is not a blank check for the president when it comes to the rights of U.S. citizens. In the same term, she also co-authored the court's 5-to-4 opinion upholding the McCain-Feingold campaign reform law. Two years ago, she authored the court's 5-to-4 opinion upholding the use of affirmative action in college admissions.

The associate justice's retirement will officially begin when her replacement is confirmed. And due to O'Connor's role on the court, an intense political battle is expected to ensue in the Senate, which has been embroiled in debates over President Bush's appointments to other offices.

Because her vote has often been determinative, O'Connor's departure gives President Bush an opportunity to solidify conservative control of the court, by choosing someone more conservative to take her place.

Among those mentioned as possible replacements for O'Connor are Attorney General Alberto Gonzalez -- who would be the first Latino appointed to the court -- and several female appeals court judges.

When she was appointed to the Supreme Court, O'Connor was aware that she would be a role model for women. She has presided over a period in American law in which women moved from being anomalies in the courtroom to the majority of graduates from many U.S. law schools.

And legal experts agree that O'Connor leaves the court after having left a profound mark on its history.


How Anthony Kennedy's Swing Vote Made Him 'the Decider'

S upreme Court Justice Anthony Kennedy announced Wednesday that he will retire in July &mdash a decision that will leave the court without his pivotal swing vote and give President Donald Trump the opportunity to nominate a replacement who could shift the court further to the right.

&ldquoIt has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court,&rdquo Kennedy, 81, said in a statement on Wednesday.

Kennedy was nominated by President Ronald Reagan in 1987. During his 30 years on the Supreme Court, Kennedy became a deciding vote on some of the most controversial Supreme Court rulings, including the legalization of same-sex marriage in 2015, the Citizens United decision on campaign finance in 2010, and cases involving abortion rights.

In June 2012, ahead of a landmark ruling on Obamacare, Kennedy appeared on the cover of TIME, labeled “The Decider.” “It is easy to forget that there is still a wide range of issues before the Justices &mdash dull but important matters like pension-fund law, for example &mdash that can be resolved amicably, without need for Kennedy’s deciding vote,” TIME’s Massimo Calabresi wrote then. “But on most cases of great moment, the intellectual battlefield of the Supreme Court has shrunk to the space between this one man’s ears.”

The cover story preceded Kennedy’s role in striking down the heart of the 1965 Voting Rights Act, legalizing same-sex marriage and upholding Trump’s travel ban &mdash all of which were 5-4 decisions in which he sided with the majority.

Efforts to fit Kennedy’s major opinions into a clear, coherent philosophy have met with little success. He generally sides with the court’s conservatives but is not tethered to any particular constitutional doctrine. ‘There is no grand unified theory for Justice Kennedy’s jurisprudence,’ says Viet Dinh, a leading conservative court watcher whose law partner Paul Clement argued the case against Obamacare. Liberals are relieved there’s one Republican nominee on the court whom they can reach with their arguments.

‘It is important to have someone who approaches each case with an open mind and who agonizes about trying to make the right decision, instead of trying to fit the case into some formulaic box,’ says Neal Katyal, Obama’s former Solicitor General. Kennedy is often compared to his former partner in the middle, retired Justice Sandra Day O’Connor.

But whereas O’Connor carefully crafted narrow rulings for individual cases, leaving tomorrow’s decisions for tomorrow, Kennedy has a fondness for grand and sweeping statements &mdash like this one from his controversial ruling in the Citizens United campaign-finance case: ‘independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.’ Never? With this broad generalization, which seemed to go beyond the specific question of free speech at the heart of the case to bless every variety of so-called independent expenditure &mdash including those not yet dreamed up by Washington pols &mdash Kennedy opened the door to the very super PACs that now seem hell-bent on proving him wrong.

That year, Kennedy was also named to TIME’s list of the 100 most influential people in the world.

At the time, Theodore B. Olson, who served as solicitor general of the United States under President George W. Bush, wrote about Kennedy’s “indelible and enduring stamp on American life and institutions.”

“So crucial is his vote that lawyers regularly pitch their arguments in close cases overtly to Justice Kennedy,” Olson wrote. Read the rest of his write-up about Kennedy here:

Supreme Court Associate Justice Anthony Kennedy may be the most influential person in American life today.

His court routinely issues decisions affecting life, death, liberty, speech, religion, property, voting, war, treaties and terrorism. Roughly one-fourth of those decisions &mdash usually the big ones &mdash are close calls, with the court dividing 5&ndash4 and Justice Kennedy, 75, siding sometimes with his liberal colleagues and sometimes with the conservatives, nearly always being the decisive vote. He has been the swing vote in the court’s abortion, death-penalty, discrimination, campaign-finance and criminal-procedure cases. One year, in fact, he was 24 for 24 in 5&ndash4 cases. So crucial is his vote that lawyers regularly pitch their arguments in close cases overtly to Justice Kennedy.

In the nearly 25 years since his appointment, over the course of five presidencies, Justice Kennedy’s convictions and unique sense of liberty, equality and justice have placed an indelible and enduring stamp on American life and institutions. President Obama’s signature health care legislation, and possibly his re-election next November, may stand or fall based on Justice Kennedy’s vote in the case, argued in March, that will likely be decided in June.


Sandra Day O’Connor’s ‘Maybe’ Regret

Exclusive: Ex-Supreme Court Justice Sandra Day O&rsquoConnor, who normally ducks questions about overturning Al Gore&rsquos election in 2000 and putting George W. Bush in the White House, admits that &ldquomaybe&rdquo a mistake was made. But she still won&rsquot accept the magnitude of her judicial crime, says Robert Parry.

Even as an investigative reporter experienced in writing about terrible decisions that lead to horrible results, I find it galling that former U.S. Supreme Court Justice Sandra Day O&rsquoConnor now grudgingly concedes that &ldquomaybe&rdquo she shouldn&rsquot have joined four other Republicans to hand the White House to George W. Bush in 2000.

In an interviewwith the Chicago Tribune editorial board last Friday, the 83-year-old O&rsquoConnor acknowledged that “maybe the court should have said, ‘We’re not going to take it [Bush&rsquos appeal of a lower court ruling], goodbye.'”

Retired U.S. Supreme Court Justice Sandra Day O’Connor.

Yet, perhaps even more galling, O&rsquoConnor didn&rsquot try to defend her reasoning in the decision, that the Florida State Supreme Court&rsquos mandate to count ballots that were kicked out by antiquated voting machines but still revealed how citizens intended to vote was somehow a violation of the Fourteenth Amendment&rsquos requirement of equal protection under the law.

The amendment was passed after the Civil War to protect the legal rights of former African-American slaves, but in the hands of O&rsquoConnor and four other Republicans it was turned inside-out, used to disenfranchise blacks and other Floridians living in poorer districts lacking the newer voting machines of whiter and richer communities.

O&rsquoConnor, who for more than a dozen years has resisted discussing the 2000 decision that overturned the will of the American voters, suggested in her comments to the Tribune that the court&rsquos legal reasoning was only a facade anyway. She noted that the disputed election had “stirred up the public” and “obviously the court did reach a decision and thought it had to reach a decision.”

She added, “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

O&rsquoConnor lamented, too, that the ruling “gave the court a less-than-perfect reputation.” Of course, more significantly, it gave the United States &ldquoa less-than-perfect&rdquo leader who proceeded to blunder the nation into a series of catastrophes that cost the lives of hundreds of thousands, threw the global economy into a depression, and left the U.S. government deeply in debt.

Though the mainstream press typically treats O&rsquoConnor with kid gloves, the hard truth is that she bears a great deal of responsibility for all that human suffering because she was the pivotal vote that overturned the collective judgment of the American people who had favored Vice President Al Gore both nationally and in Florida.

Not only did Al Gore win the national popular vote in Election 2000 but if all ballots legal under Florida law had been counted, he would have prevailed in that swing state, too, and thus become the 43 rd U.S. President. However, instead of giving Florida canvassing boards the chance to tally the ballots, O&rsquoConnor and four other Republicans simply stopped the count.

In siding with Bush, the U.S. Supreme Court also rewarded the Bush campaign for all the obstructions it had placed in the way of a full-and-fair vote count, including flying in rioters from Washington to disrupt the work of the Miami canvassing board. [For details on the election battle, see Neck Deep.]

Stopping the Recount

Finally, the Florida Supreme Court ordered a state-wide recount to determine if legally cast ballots had been missed. In response, Bush&rsquos team of lawyers rushed into federal court seeking to stall the recount until after Dec. 12, 2000, when Bush&rsquos 537-vote victory, as certified by Republican Secretary of State Katherine Harris, was scheduled to become official and render any recount meaningless.

In demanding the stay, Bush&rsquos lawyers argued that the vote counting was a threat to &ldquothe integrity of the electoral process&rdquo and could cause Bush &ldquoirreparable injury.&rdquo But there would have been nothing irreparable about conducting the recount and then, if the U.S. Supreme Court agreed with Bush, to throw out the newly discovered votes.

On the other hand, there would be irreparable harm to Gore&rsquos campaign if an injunction blocked the counting of the votes and the Dec. 12 deadline preserved Bush&rsquos margin which by then had shrunk to 154 votes. When Bush&rsquos legal arguments were presented to the conservative-dominated U.S. Court of Appeals in Atlanta, the case was promptly rejected. But Bush&rsquos lawyers then hastened to a friendlier venue, the U.S. Supreme Court.

Meanwhile, in Florida, the state-court-ordered recount was underway. County by county, election canvassing boards were moving smoothly through the machine-rejected ballots, discovering hundreds that clearly had registered choices for presidential candidates. Gore gained some and Bush gained some.

When there was a dispute, the ballots were set aside for later presentation to Leon County Circuit Judge Terry Lewis, who had been named by the Florida Supreme Court to oversee the process and was given wide leeway to make judgments about which ballots should be counted.

&ldquoThe Circuit Court is directed to enter such orders as are necessary to add any legal votes to the total statewide certifications and to enter any orders necessary,&rdquo the Florida Supreme Court ruling stated. &ldquoIn tabulating the ballots and in making a determination of what is a &lsquolegal&rsquo vote, the standard to be employed is that established by the Legislature in our election code which is that the vote shall be counted as a &lsquolegal&rsquo vote if there is &lsquoclear indication of the intent of the voter.&rsquo&rdquo

As the recount proceeded, the chairman of the Charlotte County canvassing board posed a question to Judge Lewis: what should be done with ballots in which a voter both punched the name of a presidential candidate and wrote the name in? These so-called &ldquoover-votes&rdquo containing two entries for President although for the same candidate had been kicked out of the counting machines, too, along with the &ldquounder-votes,&rdquo those where the machine couldn&rsquot discern a vote for President.

The Florida Supreme Court ruling had only specified tallying the under-votes, but the ruling also had instructed Judge Lewis to count every vote where there was a &ldquoclear indication of the intent of the voter.&rdquo The over-votes demonstrated even more clearly than the under-votes who the voter wanted.

So Lewis sent a memo to the state canvassing boards, instructing them to collect these over-votes and send them along with under-votes still in dispute. &ldquoIf you would segregate &lsquoover-votes&rsquo as you describe and indicate in your final report how many where you determined the clear intent of the voter,&rdquo Judge Lewis wrote, &ldquoI will rule on the issue for all counties.&rdquo

Lewis&rsquos memo a copy of which was later obtained by Newsweek magazine might not have seemed very significant at the time, but it would grow in importance because the over-votes were discovered to heavily favor Gore.

If they were counted as they almost surely would have been under Lewis&rsquos instructions Gore would have carried Florida regardless of what standard was applied to the &ldquochads,&rdquo the tiny pieces of paper that were not completely dislodged from the punch-through ballots that were then kicked out by the counting machines.

After the Lewis memo surfaced almost a year later, the Orlando Sentinel of Florida was virtually alone in asking the judge what he would have done with the over-votes if the Florida recount had been permitted to go forward. Lewis said that while he had not fully made up his mind about counting the over-votes in December 2000, he added: &ldquoI&rsquod be open to that.&rdquo

In effect, Lewis&rsquos instructions had signaled an obvious decision to count the over-votes because once the votes that were legal under Florida law had been identified and collected there would be no legal or logical reason to throw them out, especially since some counties had already included over-votes in their counts.

A Heart-Stopping Decision

But only hours after Lewis issued his instructions, five Republicans on the U.S. Supreme Court did something unprecedented. The narrow court majority ordered a halt in the counting of ballots cast by citizens for the election of the President of the United States.

It was a heart-stopping moment in the history of a democratic Republic. It carried the unmistakable odor of a new order imposing itself in defiance of the popular will. There were no tanks in the streets, but the court&rsquos ruling was as raw an imposition of political power as the United States had seen in modern times.

In the 5-4 decision, the highest court in the land told vote-counters across Florida to stop the recount out of fear that it would show that Gore got more votes in Florida than Bush did. Such an outcome would &ldquocast a cloud&rdquo over the &ldquolegitimacy&rdquo of an eventual Bush presidency if the U.S. Supreme Court later decided to throw out the Gore gains as illegal, explained Justice Antonin Scalia in an opinion speaking for the majority, which included Justices William Rehnquist, Anthony Kennedy, Clarence Thomas and O&rsquoConnor.

&ldquoCount first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,&rdquo wrote Scalia, an appointee of President Ronald Reagan. In other words, it was better for the U.S. public not to know for sure that Gore got the most votes if as expected the Supreme Court later decided simply to award the presidency to Bush.

In a sharply worded dissent, Justice John Paul Stevens took Scalia&rsquos reasoning to task. Stevens, a moderate who was appointed by Republican President Gerald Ford, said the injunction against the vote tally violated the traditions of &ldquojudicial restraint that have guided the Court throughout its history.&rdquo Stevens complained that the high court&rsquos action overrode the judgment of a state supreme court, took sides on a constitutional question before that issue was argued to the justices, and misinterpreted the principles of &ldquoirreparable harm.&rdquo

&ldquoCounting every legally cast vote cannot constitute irreparable harm,&rdquo Stevens argued. &ldquoOn the other hand, there is a danger that a stay may cause irreparable harm to the respondents [the Gore side] and, more importantly, the public at large&rdquo because the stay could prevent a full tally of the votes before the impending deadline of Dec. 12 for selecting Florida&rsquos electors.

As for the &ldquolegitimacy&rdquo issue, Stevens answered Scalia&rsquos rhetoric directly. &ldquoPreventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election,&rdquo Stevens wrote.

Dangerous Journey

Immediately after the U.S. Supreme Court&rsquos unprecedented injunction, I wrote at Consortiumnews.com that if the high court insisted &ldquoon stopping the vote count and handing the presidency to George W. Bush, the United States will have embarked upon a dangerous political journey whose end could affect the future of all mankind.

&ldquoFor American political institutions to ignore the will of the voters and to wrap partisanship in the judicial robes of the nation&rsquos highest court will almost certainly be followed by greater erosion of political freedom in the United States and eventually elsewhere.

&ldquoIllegitimacy and repression are two of history&rsquos most common bedfellows. Perhaps most chilling, at least for the moment, is the now-unavoidable recognition that the U.S. Supreme Court, the country&rsquos final arbiter of justice, has transformed itself into the right wing&rsquos ultimate political weapon. A dark cloud is descending over the nation.&rdquo

Three days later, the other shoe from the U.S. Supreme Court was expected to drop. There should have been no real doubt how O&rsquoConnor and the other four would rule they clearly had decided that George W. Bush should be President but it was less certain what legal reasoning they would employ.

The mainstream press regarded O&rsquoConnor as a sort of &ldquowise woman&rdquo beyond the taint of partisanship, but she had a personal as well as political reason for putting Bush in the White House. With her husband ailing from Alzheimer&rsquos disease, O&rsquoConnor was contemplating retiring and wanted a Republican appointed as her successor.

Consortiumnews.com political reporter Mollie Dickenson reported that &ldquoone of the court&rsquos supposed &lsquoswing votes,&rsquo Justice Sandra Day O&rsquoConnor, is firmly on board for George W. Bush&rsquos victory. According to a knowledgeable source, O&rsquoConnor was visibly upset indeed furious when the networks called Florida for Vice President Al Gore on Election Night. &lsquoThis is terrible,&rsquo she said, giving the impression that she desperately wanted Bush to win.&rdquo

But one optimist who thought that O&rsquoConnor would demand a ruling respectful of democratic principles was Al Gore. Dickenson reported that as late as 4 p.m. on Dec. 12, Gore was making campaign thank-you calls, including one to Sarah Brady, the gun-control advocate whose husband James Brady had been wounded in the 1981 assassination attempt against President Ronald Reagan.

&ldquoWe&rsquore going to win this thing, Sarah,&rdquo Gore said. &ldquoI just have all the faith in the world that Sandra Day O&rsquoConnor is going to be with us on this one.&rdquo

An Acrobatic Ruling

As it turned out, Gore&rsquos confidence in O&rsquoConnor was misplaced. As the clock ticked toward a midnight deadline for Florida to complete any recount, O&rsquoConnor was working with Justice Kennedy to fashion a ruling that would sound principled but still would prevent a full recount and thus guarantee both George W. Bush&rsquos inauguration and Republican control over the appointment of future federal judges.

Yet, behind the closed doors of the court chambers, O&rsquoConnor and the other four pro-Bush justices were having a harder time than expected coming up with even a marginally plausible legal case. Indeed, outside public view, the five justices tentatively decided on one set of arguments on Dec. 11 but then reversed their thinking nearly 180 degrees heading into the evening of Dec. 12.

USA Today disclosed the inside story in a later article that focused on the stress that the Bush v. Gore ruling had caused within the court. While sympathetic to the pro-Bush majority, the article by reporter Joan Biskupic explained the court&rsquos flip-flop in legal reasoning.

The five justices had been planning to rule 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, but events took a different turn.

The Dec. 11 legal rationale for stopping the recount was to have been that the Florida Supreme Court had made &ldquonew law&rdquo when it referenced the state constitution in an initial recount decision rather than simply interpreting state statutes. Even though this pro-Bush argument was highly technical, the rationale at least conformed with conservative principles, supposedly hostile to &ldquojudicial activism.&rdquo

But 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 the passing reference to the state constitution. The revised state ruling based its reasoning entirely on state statutes that permitted recounts in close elections.

The revision drew little attention from the national press, but it created a crisis within the U.S. Supreme Court&rsquos majority. Justices O&rsquoConnor and Kennedy no longer felt they could agree with the &ldquonew law&rdquo rationale for striking down the recount, though Rehnquist, Scalia and Thomas still were prepared to use that argument despite the altered reasoning from the state court.

Searching for a new rationale, O&rsquoConnor and Kennedy veered off in a different direction. Through the day of Dec. 12, the pair 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 &ldquoequal protection&rdquo rules of the Fourteenth Amendment. But this argument was so thin and so tendentious that Kennedy reportedly had trouble committing it to writing with good reason.

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 where many African-Americans and retired Jews lived were stuck with outmoded punch-card systems with far higher error rates. Some Republican counties also had conducted manual recounts on their own and those totals were part of the tallies giving Bush a tiny lead.

The suspended statewide recount, even if there were slight variations of standards regarding &ldquointent of the voters,&rdquo was designed to reduce these disparities and thus bring the results closer to equality.

Applying the &ldquoequal protection&rdquo provision, as planned by O&rsquoConnor and Kennedy, turned the Fourteenth Amendment on its head, guaranteeing less equality than would occur if the recount went forward. Plus, the losers in this perverse application of the Fourteenth Amendment would include African-Americans whose legal rights the amendment had been created to protect.

Further, if one were to follow the O&rsquoConnor-Kennedy position to its logical conclusion, the only fair outcome would have been to throw out Florida&rsquos presidential election in total. After all, Florida&rsquos disparate standards were being judged unconstitutional, and without some form of recount to eliminate those disparities, the entire statewide results would violate the Fourteenth Amendment.

That, however, would have left Al Gore with a majority of the remaining electoral votes nationwide. Clearly, the five pro-Bush justices had no intention of letting their &ldquologic&rdquo lead to that result.

Beyond the stretched logic of O&rsquoConnor-Kennedy was the readiness of Rehnquist, Scalia and Thomas to sign on to the revamped opinion that was almost completely at odds with their own legal rationale for blocking the recount in the first place. On the night of Dec. 11, that trio was ready to bar the recount because the Florida Supreme Court had created &ldquonew law.&rdquo A day later, they agreed to bar the recount because the Florida Supreme Court had not created &ldquonew law,&rdquo the establishment of precise statewide recount standards.

The pro-Bush justices had devised a Catch-22. If the Florida Supreme Court set clearer standards, they would be struck down as creating &ldquonew law.&rdquo Yet, if the state court didn&rsquot set clearer standards, that would be struck down as violating the &ldquoequal protection&rdquo principle. Heads Bush wins tails Gore loses.

Never before in American history had U.S. Supreme Court justices exploited their extraordinary powers as brazenly to advance such clearly partisan interests as did these five justices.

The Bush v. Gore decision was finally released at 10 p.m., Dec. 12, just two hours before the deadline for completing the recount. After having delayed any remedy up to the deadline, the five pro-Bush justices then demanded that any revised plan and recount be finished in 120 minutes, a patently impossible task.

In a dissenting opinion, Justice Stevens said the majority&rsquos action in blocking the Florida recount &ldquocan only lend credence to the most cynical appraisal of the work of judges throughout the land.&rdquo

Justices Stephen Breyer and Ruth Bader Ginsburg, appointees of President Bill Clinton, said in another dissent, &ldquoAlthough we may never know with complete certainty the identity of the winner of this year&rsquos presidential election, the identity of the loser is perfectly clear. It is the nation&rsquos confidence in the judge as an impartial guardian of the rule of law.&rdquo

Tacitly recognizing the nonsensical nature of its own ruling, the majority barred the Bush v. Gore decision from ever being cited as a precedent in any other case. It was a one-time deal to put Bush in the White House.

The next day, Al Gore whose final national plurality by then had grown to about 540,000 votes, more than the winning margins for Kennedy in 1960 or Nixon in 1968 conceded Election 2000 to George W. Bush.

After Gore&rsquos concession, Justice Thomas told a group of high school students that partisan considerations played a &ldquozero&rdquo part in the court&rsquos decisions. Later, asked whether Thomas&rsquos assessment was accurate, Rehnquist answered, &ldquoAbsolutely.&rdquo

Shielding Bush

Once those five Republican justices handed the White House to their fellow Republican the poorly qualified Bush other representatives of the Establishment stepped in to shield Bush&rsquos fragile &ldquolegitimacy.&rdquo Major U.S. news outlets did their part to conceal the reality of the electoral fraud. Especially after the 9/11 attacks, senior editors closed ranks around the bumbling Bush and even misreported the findings of their own recount of the disputed Florida ballots.

When the news outlets finally got around to publishing their findings in November 2001, they intentionally buried the lede, i.e. that the wrong guy was in the White House. Instead, they focused on two hypothetical partial recounts that would have still left Bush with a tiny plurality. Yet, the only tally that should have mattered was the will of the Florida voters as reflected in the ballots considered legal under state law.

So, not only was history altered by the unjustified intervention of O&rsquoConnor and her four collaborators, but history was then willfully miswritten by the New York Times, the Washington Post, CNN and other news heavyweights. &ldquoStudy of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote,&rdquo the New York Times declared. &ldquoFlorida Recounts Would Have Favored Bush&rdquo exclaimed the Washington Post.

The Post&rsquos Page One article was followed by a sidebar from media critic Howard Kurtz, who took the Bush-victory spin one cycle further, with a story headlined, &ldquoGeorge W. Bush, Now More Than Ever.&rdquo Kurtz ridiculed as &ldquoconspiracy theorists&rdquo those who had expected to learn that Gore had actually won.

&ldquoThe conspiracy theorists have been out in force, convinced that the media were covering up the Florida election results to protect President Bush,&rdquo Kurtz wrote. &ldquoThat gets put to rest today, with the finding by eight news organizations that Bush would have beaten Gore under both of the recount plans being considered at the time.&rdquo

Kurtz also mocked those who believed that winning an election fairly, based on the will of the voters, was all that important in a democracy. &ldquoNow the question is: How many people still care about the election deadlock that last fall felt like the story of the century and now faintly echoes like some distant Civil War battle?&rdquo he wrote.

But, Kurtz&rsquos sarcasm aside, a close reading of the actual findings buried by the big newspapers on inside pages or included as part of a statistical chart revealed that the Page One stories were misleading, if not outright false. The reality was that Al Gore actually had been the choice of Florida&rsquos voters if all legally cast votes were counted. By any chad measure hanging, dimpled or fully punched through Gore would have won Florida and thus the White House.

Gore won even if one ignored the 15,000 to 25,000 votes that USA Today estimated Gore lost because of illegally designed &ldquobutterfly ballots,&rdquo or the hundreds of predominantly African-American voters who were falsely identified by the state as felons and turned away from the polls. Gore won even if there were no adjustment for Bush&rsquos windfall of about 290 votes from improperly counted military absentee ballots where lax standards were applied to Republican counties and strict standards to Democratic ones.

Put differently, George W. Bush was not the choice of Florida&rsquos voters anymore than he had been the choice of the American people who cast a half million more ballots for Gore than Bush nationwide. Yet, possibly for reasons of patriotism or out of fear of criticism if they had written &ldquoGore Won&rdquo leads, the news organizations that financed the Florida ballot study structured their stories on the ballot review to indicate that Bush was the legitimate winner.

In effect, the elite media&rsquos judgment was &ldquoBush won, get over it.&rdquo Only &ldquoGore partisans&rdquo as both the Washington Post and the New York Times called critics of the official Florida election tallies would insist on looking at the fine print.

Seeing the Numbers

While &ldquoBush Won&rdquo was the short-hand theme of nearly all the news stories on Nov. 12, 2001, it was still a bit jarring to go beyond the Page One articles or CNN&rsquos headlines and read the actual results of the statewide review of 175,010 disputed ballots. &ldquoFull Review Favors Gore,&rdquo the Washington Post stated in a box on Page 10, showing that under all standards applied to the ballots, Gore came out on top. The New York Times&rsquo graphic revealed the same outcome.

Counting fully punched chads and limited marks on optical ballots, Gore won by 115 votes. With any dimple or optical mark, Gore won by 107 votes. With one corner of a chad detached or any optical mark, Gore won by 60 votes. Applying the standards set by each county, Gore won by 171 votes.

Beyond getting the story wrong, the major U.S. newspapers acted as if it was their duty to convince the American people that Bush really was elected legitimately. Within one or two hours of posting a story at Consortiumnews.com challenging the big media&rsquos version of the recount, I received an irate phone call from New York Times media writer Felicity Barringer.

In an &ldquointerview&rdquo which was more like a cross-examination, Barringer argued that my story had unfairly impugned the journalistic integrity of then-Times executive editor Howell Raines. Barringer seemed to have been on the lookout for any deviant point of view that questioned the &ldquoBush Won&rdquo conventional wisdom.


Outside the Beltway

Former Justice O'Connor seems to regret the fact that the Supreme Court got involved in the 2000 election. Her regrets are misplaced.

Retired U.S. Supreme Court Justice Sandra Day O’Connor hasn’t given much thought to which was the most important case she helped decide during her 25 years on the bench. But she has no doubt which was the most controversial.

It was Bush v. Gore, which ended the Florida recount and decided the 2000 presidential election.

Looking back, O’Connor said, she isn’t sure the high court should have taken the case.

“It took the case and decided it at a time when it was still a big election issue,” O’Connor said during a talk Friday with the Tribune editorial board. “Maybe the court should have said, ‘We’re not going to take it, goodbye.'”

The case, she said, “stirred up the public” and “gave the court a less-than-perfect reputation.”

“Obviously the court did reach a decision and thought it had to reach a decision,” she said. “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

O’Connor, who was appointed by President Ronald Reagan in 1981, was the first woman to serve on the high court. Though she tended to side with the conservatives, O’Connor was known as the court’s swing vote. Her vote in the 5-4 Bush v. Gore decision effectively gave Republican George W. Bush a victory over his Democratic opponent, then-Vice President Al Gore.

It’s worth noting, of course, that O’Connor’s position today could be the same that as it was when the case first came to the Supreme Court in December 2000. It only takes four Justices for a case to be accepted for appeal, and since those votes are always secret it’s unlikely we’ll ever know who the four (or possibly) more Justices who voted to take the case were. O’Connor may have been one of the Justices against taking the case but, once it was accepted for appeal, she was as bound as her other fellow Justices to make a ruling based on the facts and the law before them. In that respect, it’s worth noting that the options in front of the Court at the end of the day were fairly limited. Either they were going to allow the limited recounts that had been ordered by the Florida Supreme Court to go forward, or they were going to halt them. There really wasn’t a another avenue for the Court to take, and no way for them to dodge the responsibility for making a decision once the case had been accepted for appeal.

As for the decision to accept the appeal itself, I suppose I do understand why O’Connor may feel this way. The case was unusual for the Court in that it required the Justices to intervene in the political process to a far greater degree than they ordinarily do, and far more than the Justices are generally comfortable with. No matter which way the case was decided, it was inevitable that the Court was going to be seen as a political actor, especially since the legal issues involved in the case were fairly esoteric and not easily explained by a media that had been covering the ongoing controversy in Florida since the polls had closed a month and a half earlier. To the extent that the Justices are concerned about the reputation of the Court, the mere act of accepting the case inevitably meant that they’d take a reputation hit at some point. The fact that their decision led to the election of a President who many people now view negatively only adds to those negative feelings.

Despite this, though, and despite the comments of former Justice O’Connor, I think an argument can be made that the Court did the right thing by accepting Bush v. Gore. Had they not done so, it would have hardly been the end of the chaos that surrounded the 2000 election. Recounts, under vague and amorphous rules, would have had to go forward in select Florida counties. There likely would have been additional litigation in the state and Federal Courts down there. The media controversies would have continued, and the status of Florida’s 25 Electoral Votes, along with the outcome of the Presidential election itself, would have been up in the air. Indeed, even if one of the two candidates had conceded the result in an effort to end the uncertainty, it’s likely that doubt would have persisted because the legal certification of Florida’s Electoral College votes would have still been in doubt.* No matter how that process in Florida ended, there would have been a question of legitimacy hanging over whoever it was that ended up assuming the Presidency on January 20, 2001. By accepting the case, the Supreme Court brought some degree of certainty into the process and lent an air of legal legitimacy to the outcome of the election that was sorely lacking during the long period after Election Day. For that reason alone, I’d suggest that, in the end, history will judge that the Supreme Court did the right thing even if it did take a hit to its reputation in the short term.

* Indeed, I have always believed that Al Gore deserves a tremendous amount of credit for his reaction to the outcome of the Court’s decision in Bush v. Gore in which he accepted the results and recognized Bush as the winner of the election. A candidate who would have reacted by questioning the legitimacy of the Court’s decision would have been bad for the country as whole.


Photos: Sandra Day O'Connor through the years

U.S. Supreme Court Justice Sandra Day O'Connor is shown before administering the oath of office to members of the Texas Supreme Court, Monday, Jan. 6, 2003, in Austin, Texas. (Photo: Harry Cabluck/AP Photo)

The 2000 presidential election ended in a dead heat between Vice President Al Gore versus former Texas Gov. George W. Bush, with all eyes on vote counts in Florida.

At issue were Florida's 25 electoral votes that, by law, had to be allotted as a block — all or nothing — and those 25 votes would determine which of the men would be president.

Bush barely eked out a win in Miami-Dade County, but because the totals were within a 1 percent difference, it triggered an automatic recount, in which Gore picked up more votes, though still fewer than Bush.

Gore's people turned to the Florida state courts, and their plea worked its way up to the Florida Supreme Court, which ordered recounts in other counties where there were anomalies.

Bush's attorneys countered by petitioning the U.S. Supreme Court, which in a 5-4 vote, stopped the recounts. Sandra Day O'Connor was the swing vote, which gave the presidency to Bush.

President George W. Bush (second from right) poses with Chief Justice John Roberts (second from left) and Justices John Paul Stevens and Sandra Day O'Connor at the court on Oct. 3, 2005. (Photo: Associated Press)

The New Yorker writer Jeffrey Toobin has written in books and magazine articles that O'Connor was rooting for Bush to win, partly because she was an admirer of Bush's father, President George H.W. Bush.

But she may have regretted using her swing vote as she did.

In an interview in 2013, seven years after she retired from the bench, O'Connor told the Chicago Tribune editorial board that the decision "stirred up the public" and "gave the court a less-than-perfect reputation."

"It took the case and decided it at a time when it was still a big election issue," she told the Tribune. "Maybe the court should have said, 'We're not going to take it, goodbye.' "

She told Tribune editors that the court felt it needed to make a decision.

"It turned out the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day," she said.


Politix Update: Bush v. Gore & The Tarnished Legacy Of Justice Sandra Day O’Connor

Should Yogi Berra’s long baseball career be judged by his error in a crucial 1951 game that deprived the New York Yankees’ Allie Reynolds of a no-hitter against the Boston Red Sox? Or Dustin Hoffman’s long film career judged by the 1987 cinematic bomb known as Ishtar? Of course not. But what about judging the long judicial career of Sandra Day O’Connor based on her casting the deciding Supreme Court vote throwing the 2000 presidential election to George W. Bush? Absolutely.

This question rears its ugly head yet again as the high court — without question the most political in history and perhaps nowhere more so as with the infamous Bush v. Gore decision — begins a new term this week. That decision was not the court’s first to be tainted by the opprobrium of politics, which have influenced too many of its decisions over the last 226 years. But that decision was so wrongheaded, so devious, so devoid of logic and genuine constitutional underpinnings, and its consequences so far reaching, that it obscures if not altogether erases O’Connor’s good works, most notably holding the dike against the campaigns to reverse Roe v. Wade and leave women’s reproductive fate to the states.

The process of undoing the moderate aspects of O’Connor’s legacy, which beyond abortion extended to affirmative action and race-based legislative redistricting, has been ongoing since she retired in 2006. So has the deepening politicization of the court, and abortion may loom large in the new term, specifically a draconian Texas law which has led to the closure of about half of the state’s abortion facilities.

Justice Anthony Kennedy, who superseded O’Connor as the court’s swing vote, has not struck down a restriction on abortion since 1992, and all bets are off despite his key votes upholding the constitutionality of the Affirmative Care Act and same-sex marriage in the court’s two liberal lurches earlier this year. Other important cases to be heard this term include whether California and other states can compel government employees to pay union dues, revisiting the constitutionality of the University of Texas’s affirmative action program, yet another Texas case concerning whether state legislative districts can be apportioned using a count of eligible voters rather than a count of all residents, and whether religious institutions can opt out of providing contraception under Obamacare.

So unless you are a fan of conservative judicial activism as practiced by O’Connor’s successor, Justice Samuel Alito, and his reactionary partners in black bathrobes, it’s time to stock up on Pepcid, because the new term could be stomach churning.

SIDESHOWS & CHICANERY

“Sandra Day O’Connor is no Ruth Bader Ginsburg. Ginsburg gave us the legal architecture of women’s place in America. O’Connor, the first woman on the U.S. Supreme Court, gave us George W. Bush,” is how the New York Law Review put it recently. Vicious? Absolutely. Accurate? Sadly, yes.

On December 12, 2000, the high court acted on an appeal by Bush of a unanimous Florida Supreme Court ruling that ballots cast but not counted by voting machine in the November 7 presidential election must be manually recounted. (I wrote a succession of six versions of the main Philadelphia Daily News election story as the Florida polls closed and the lead seesawed back and forth through the night and into the morning, and the paper took the extraordinary step of printing two Extra editions, the final one declaring Bush the winner by a hair. Lost in the uproar was the victory of Hillary Rodham Clinton over Rick Lazio for the New York Senate seat of the retiring Daniel Patrick Moynihan.)

In a bombshell decision, a narrow Supreme Court majority decided in an historic 5-4 per curiam decision that the Florida court’s ruling was unconstitutional because it granted more protection to some ballots than others. It is statistically possible — if not likely — that counties that went heavily for Gore would have yielded extra votes for him had a recount been allowed, but O’Connor and the other four majority justices would hear none of that despite the fact they had previously given great deference to state court decisions in close elections. (It should be noted that all of the majority justices were Republican appointees, while the Florida judges were all Democrats.)

There has been conjecture that since it takes only four votes to hear a case, O’Connor demurred but then joined in a profoundly imperious decision because she was a Bush family sycophant.

The Bush v. Gore decision followed an epic cavalcade of sideshows and chicanery, and of course opposing armies of lawyers. There were the infamous “hanging” chads and extralegal antics by Katherine Harris, Florida’s Republican secretary of state and one-woman horror show, who foot dragged through one crucial deadline after another in refusing to certify manual vote recounts. December 12 was the biggest deadline of all — the day on which Florida was required to select electors to formally submit its choice for president to Congress. Thus, with no time left to recount votes, Bush became the de facto winner, or President Select, as a wag noted at the time, edging out Gore in Florida by 543 votes and nationally in electoral but not popular votes.

Incidentally, per curiam means that no specific judge is identified as writing an opinion, or in this instance, no member of the cowardly majority dared write an opinion with their name on it. But Justice John Paul Stevens did not hesitate to speak out, proclaiming in a powerful dissent that “one thing . . . is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

JUSTICE O’CONNOR REGRETS

Having revisited Bush v. Gore in headache-inducing detail in researching this column, I concede that under alternative scenarios, the best the Supreme Court could have done was pick a different side to feel that it had been robbed. That obscures but does not change a very big reality: A vote recount unfettered by deadlines possibly — if not likely — would have resulted in a Gore presidency.

Although it is a bit like playing a version of the What If Hitler Invaded England? game, a Gore presidency would have had its own burdens and problems, probably including the 9/11 attacks and a war in Afghanistan, although not a war in Iraq and the enormous consequences it wrought at home and globally. Oh, and John Roberts would not have replaced Chief Justice William Rehnquist nor Alito have replaced O’Connor. Nor would we have had the Harriet Miers debacle because Gore, despite his own moments of hubris, would not have nominated a staggering lightweight whose only claim to fame was that she kept Bush supplied with red, white and blue M&M candies.

In the years since Bush v. Gore, O’Connor has sounded less like a conservative with moderate tendencies than a moderate with liberal tendencies.

“Gosh, I step away for a couple of years and there’s no telling what’s going to happen,” she said in one public appearance. What has soured her is the hard-right course her beloved Supreme Court has taken. She also has been privately critical of the Bush presidency, notably the pandering surrounding the case of brain-damaged Terri Schiavo and the attempts to overrule her husband’s wishes at a time when O’Connor’s own husband was succumbing to Alzheimer’s disease.

O’Connor has continued to defend her pivotal role in handing the presidency to Bush at events ranging from law-school convocations to private gatherings, while noting that Bush v. Gore gave the court “a less than perfect reputation. And she has been outspoken in her opposition to the Citizens United ruling because of its corrosive effect on politics, specifically how unlimited campaign contributions further corrupt the process of electing judges.

It is not difficult to imagine that O’Connor, as someone who packed so much gravitas and integrity (okay, Bush v. Gore excepted) into her legal career, and who in the end I cannot help but admiring, has been tormented by the consequences of her deciding vote and retiring prematurely, let alone squandering what legal analyst Jeffrey Toobin calls “the most precious gift” any justice can proffer to their successor. That is bequeathing their seat to a worthy successor, which David Souter and John Paul Stevens did in forestalling their retirements until the election of Barack Obama. The result was Ruth Bader Ginsburg and Sonia Sotomayor, two fine justices, becoming the second and third women to join the court.

Then in 2013, O’Connor ripped open the long festering Bush v. Gore wound, noting in an interview with the Chicago Tribune editorial board that the court “took the case and decided it at a time when it was still a big election issue. It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

Incredibly, O’Connor then added:

“Maybe the court should have said, ‘We’re not going to take it, goodbye.’ ”

Maybe, just maybe. But it is way too late for what-ifs.

Politix Update is an irregular compendium written by veteran journalist Shaun Mullen, for whom the 2016
presidential campaign is his (gasp!) 12th since 1968. Click here for an index of previous
Politix Updates.


Sandra Day O’Connor: Breaking the High Court’s Glass Ceiling

A 1985 Post article shares Justice O’Connor’s thoughtful determination — and a recipe for crab enchiladas.

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On September 25, 1981, Sandra Day O’Connor was sworn in as the first woman member of the Supreme Court.

That distinction alone would have earned her a place in the American history books. But Justice O’Connor also proved to be memorable for several of her judicial opinions, which had far-reaching consequences. For example, she was the pivotal vote in Bush v. Gore, which resolved Florida’s disputed presidential election results and decided the presidential election of 2000.

Though generally conservative in her opinions, O’Connor would occasionally show an independent streak when she sided with the court’s more liberal judges. She provided the crucial swing vote in Planned Parenthood v. Casey in 1992, which upheld the Court’s earlier opinion in Roe v. Wade.

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In our 1985 article, “Her Honor: The Rancher’s Daughter,” writer Joan S. Marie presents a more personal side of O’Connor, including the morning aerobics classes she organized at the Supreme Court, stories of her childhood on an Arizona ranch (bobcat included), and the antics of Family Olympics Day. Typical of “working woman” profiles of the era, Marie spends as much time showing how O’Connor managed her family as she did her caseload, and even works in a recipe (crab enchiladas).

But O’Connor’s determination to excel at her profession shines through. She shares how hard she had to work to even get into the legal profession. When she graduated from law school in 1952, she had difficulty even finding work because no law firm was interested in hiring a woman. She eventually opened her own law firm, became Arizona’s assistant attorney general, a state senator, a superior court judge, and a judge on the Arizona Court of Appeals. In 1981, the call came from the Reagan White House.

In the 1985 article, O’Connor anticipated that America would soon see more women on the bench: “In our law schools today, at least half the students are women. I fully expect to see the percentages of women in the practice reflected in the roughly similar percentages on the bench and in other activities in which lawyers are generally engaged. So I certainly do think we are going to see that reflected — not only here but in judicial offices across the nation.”

O’Connor served on the Supreme Court for 25 years, until her retirement in 2006. She was the first woman Supreme Court justice, but, of course, she wasn’t the last. Clinton nominee Ruth Bader Ginsberg and Obama nominees Sonia Sotomayor and Elena Kagan followed in her path.

Featured image: Sandra Day O’Connor being sworn in by Chief Justice Warren Burger in 1981 (White House Photographic Office, National Archives)

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Comments:

  1. Redmond

    Wacker, an excellent phrase and is timely

  2. Malyn

    Bravo, I think this is the magnificent idea

  3. Istu

    the graceful answer

  4. Nikosida

    You must tell this - the lie.



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