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And for a brief moment Breyer appeared to have succeeded. At the conference following the oral argument, Kennedy joined the dissenters and, at least temporarily, turned them into the majority. The case would be sent back to the Florida court for fixing; the recount would continue. But the liberal clerks never believed that Kennedy had really switched, and predicted that, having created the desired image of agonizing, he would quickly switch back.

And, sure enough, within a half-hour or so, he did switch back.

Given the approaching deadline, Rehnquist decreed after oral arguments that any decision to send the case back to Florida had to be handed down immediately; were the Court to reverse, time would cease to matter, and the decision could wait a day. Stevens banged out a one-paragraph opinion, remanding the case to Florida, and sent it around.


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There were no takers. The Court was going to reverse, and throughout Monday evening and into Tuesday morning the two sides drafted and circulated their proposed opinions. Rehnquist was writing what he thought would be the majority opinion, reversing the Florida court on both the jurisdictional and equal-protection grounds. It chastised the Court for holding the justices of the Florida Supreme Court up to ridicule.

The other dissenters would join Stevens, but had their own points to make.


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Because they, too, believed the case would hinge primarily on the autonomy of the Florida legislature, they dealt only secondarily, and peripherally, with the equal-protection argument. Stevens and Ginsburg denied that it applied at all. For better or worse, Ginsburg wrote, disparities were a part of all elections; if there were any equal-protection concerns at all, she wrote, they surely applied more to black voters, noting a New York Times report that a disproportionate number of blacks had encountered problems voting.

Though racial questions already hung over the Florida vote, hers was to be the only reference to race in any of the opinions, and it was relegated to a footnote. But to the liberal clerks, these issues needed to be acknowledged, and a footnote was better than nothing at all. Neither Breyer nor Souter had suggested initially that the recount had triggered any equal-protection questions. It was not to stop the recount altogether. To clerks on both sides of the case, what appealed both to her and to Kennedy about invoking equal protection was that it looked fair.

And it would go largely uncontradicted: with time running out and the dissents nearly complete, the losers had no chance to explain, in any coherent way, why equal-protection concerns should not be allowed to stop the recount. As the drafts began circulating, tempers began to fray. He charged that his opponents in the case were inflicting the very wounds to the Court that they had supposedly decried. Whether out of timidity, collegiality, or affection—Scalia was her closest friend on the Court—Ginsburg promptly took it out.

Shortly before his opinion went to the printers, he inserted a new line making substantially the same point. But it was too late to take issue with it. On the equal-protection claim, it had seven voting for, and only two against. Despite their loyalty to their justices—a striking, filial-like phenomenon among most clerks—several concede that the dissenters in Bush v. Gore were simply outmaneuvered.

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Never did the four of them have the votes to prevail. The varying standards of the recount, Kennedy wrote, did not satisfy even the rudimentary requirements of equal protection. Although six more days would pass before the electors met in their states, he insisted there was too little time for the Florida courts to fix things. There were two more extraordinary passages: first, that the ruling applied to Bush and Bush alone, lest anyone think the Court was expanding the reach of the equal-protection clause; and, second, that the Court had taken the case only very reluctantly and out of necessity.

Rehnquist, along with Scalia and Thomas, joined in the decision, but Scalia, for one, was unimpressed. Whether or not one agrees with him, Scalia is a rigorous thinker; while the claim that the Florida Supreme Court overstepped its bounds had some superficial heft to it, the opinion on equal-protection was mediocre and flaccid.

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Sharing little but a common sense of exhaustion and Thai takeout, the clerks came together briefly to watch the news. The liberal ones slumped in their chairs; some left the room, overcome by their own irrelevance. They contemplated a variety of options—holding a press conference, perhaps, or leaking incriminating documents.

There was just one problem: there were none. At last he concluded that the Court had never really given him a shot, and he congratulated his legal team for making it so hard for the Court to justify its decision. To some, it seemed like gloating; Eduardo Penalver asked him to stop. There were reports that for some time afterward Souter was depressed over the decision.

But such comments were quickly disavowed, were out of character for each man, and appeared inconsistent with the facts. The clerks, for instance, believed Souter had spent most of the last few crucial days in his chambers brooding over the case rather than working any back channels. On her 71st birthday, in March , she was sitting in the Kennedy Center when Arthur Miller, the playwright, denounced what the Court had done.

Gore, he can never be named chief justice. The experience left scars on those who lived through it.

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What I felt was beyond anger. It was really a profound sense of loss. Gore will be vindicated. Ultimately, only the five justices in the majority know how and why they decided the case as they did and whether they did it in good or bad faith. An insider was asked if the five would pass a lie-detector test on the subject.

While the Supreme Court was pondering the case, a calm settled over the canvassing boards around Florida, as the manual recount continued. Judge Terry Lewis, assigned by the Florida Supreme Court to put its order into action, had called on the counties not to announce any results until the work was done.

By Lauren Harris

So much time had been put into counting by what seemed a fair method at last. And now, with stunning suddenness, it was stopped. We put everything away and everybody went home and that was the end of it. A year after the election, a consortium of newspapers examined the ballots and reported that had the Supreme Court not intervened in the recount, Bush still would have won the election by the slimmest of margins, a headline that gave comfort to Democrats and Republicans alike. There was only one problem. The newspapers had looked at only the undervotes, which the Florida Supreme Court had ordered to be examined for the recount.

But there were also more than , overvotes. Later examination by the same papers of the overvotes—which Judge Lewis says he would have been inclined to consider—determined that Gore would have edged out Bush had they been considered. Amid the media frenzy after the election, one story went untold—the one in the footnote that Scalia had asked Ginsburg to delete from her dissent. In fact, thousands of African-Americans in Florida had been stripped of their right to vote. After seeing a white woman casting an affidavit ballot, she asked if she could do the same. She was turned down.

Lavonna Lewis was on the rolls.

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But after waiting in line for hours, the polls closed. She was told to leave, while a white man was allowed to get in line, she says. Only after two and a half hours was she allowed to cast her ballot. Brown had registered thousands of students from 10 Florida colleges in the months prior to the election. Had them register.

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When it came time to vote, they were not on the rolls! The phone lines at the N. In November , he announced his One Florida Initiative, in which, with the stroke of a pen, he ended mandatory affirmative-action quotas by cutting off preferential treatment in the awarding of state contracts, university admissions, and government hiring. Tom Hill, then a state representative, and U. He later claimed to be referring to reporters stationed near the sit-in. They also registered to vote.

By Election Day , , blacks were registered, up by nearly , since Election Day itself felt like payback.

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