Under the weird headline “New documents show how Sandra Day O’Connor helped George W. Bush win the 2000 election,” CNN’s Joan Biskupic sheds new light on one of the most controversial cases in Supreme Court history.
Justice Sandra Day O’Connor provided the early framework that steered the outcome in the dispute over the 2000 presidential election and ensured George W. Bush would win the White House over Al Gore, Supreme Court documents released on Tuesday show.
Memos found in the newly opened files of the late Justice John Paul Stevens offer a first-ever view of the behind-the-scenes negotiations on Bush v. Gore at the court. They also demonstrate the tension among the nine justices being asked to decide a presidential election on short deadlines.
The documents opened at the Library of Congress help reveal how the now-retired O’Connor, the first woman on the high court and a justice steeped in politics from her early days in the Arizona legislature, partnered with Justice Anthony Kennedy, effectively squeezing out an argument advanced by then-Chief Justice William Rehnquist.
The strong hand of O’Connor, who was at the ideological center of the court in this era, is not wholly surprising. O’Connor was also known for trying to get out ahead of deliberations, and her four-page memo was circulated to colleagues even before oral arguments. Her move may have guaranteed that she and Kennedy had the greatest influence on the final “per curiam” opinion that spoke for a five-justice majority.
There’s a lot in the report rehashing the external political fight over the Florida recount but anyone reading this will be quite familiar with that. What’s new here is the internal struggle among the Justices over the ruling.
O’Connor’s views, expressed in a December 10, 2000, memo, were endorsed by fellow conservative-centrist Kennedy as he took the lead in writing the unsigned “per curiam” opinion issued late on the evening of December 12, the new documents show.
The shared views of O’Connor and Kennedy eventually forced Rehnquist to abandon his effort to author the main opinion with a boundary-pushing view of federal election principles – views that would come up during Donald Trump’s attempt to overturn the 2020 presidential election.
So, what O’Connor contributed was a different theory of why the vote counting must stop than the one Rehnquist was pushing. Either way, the majority agreed that what was happening in Florida was in violation of the Constitution.
O’Connor laid the groundwork for that result in her December 10 memo to all her colleagues as she condemned a Florida state Supreme Court decision ordering selective recounts of “undervotes” in certain counties.
She opened by highlighting state legislative authority to set the rules for the appointment of state presidential electors but quickly focused on the flaws, as she perceived them, of the ongoing recounts ordered by the state court.
“The Florida Supreme Court provided no uniform, statewide method for identifying and separating the undervotes,” O’Connor wrote, referring to instances when machines had failed to detect a vote for president. “Accordingly, there was no guarantee that those ballots deemed undervotes had not been previously tabulated. More importantly, the court failed to provide any standard more specific than the ‘intent of the voter’ standard to govern this statewide undervote recount. Therefore, each individual county was left to devise its own standards.”
The system triggered by the Florida Supreme Court “in no way resembles the statutory scheme created by the Florida legislature” for the appointment of electors, said the justice who had once served as Arizona state Senate majority leader, the first woman nationwide to hold such the top post in a state senate.
The next day, Kennedy wrote to the chief justice, “Sandra’s memorandum sets forth a very sound approach” and said he wanted to build on it. He suggested he would point up how the varying recount practices breached the guarantee of equal protection.
The correspondence in the Stevens files suggests that Rehnquist thought he might be able to work with Kennedy on the court’s main opinion and to press the chief’s own theory of complete and independent state legislative power.
Rehnquist wrote in a December 11 memo that he and Kennedy were “working on a composite opinion.” Rehnquist hoped to send around a copy that evening.
By the next day, however, Kennedy had fully separated himself from Rehnquist’s view of complete state legislative authority over presidential elections with no check by a state judges interpreting the state’s constitution.
As a result, Rehnquist wrote to the group, his own “present draft cannot accurately be labeled” the opinion for the court. Rehnquist said he would be re-circulating his views, going beyond the O’Connor-Kennedy position, as a separate concurring opinion.
The Rehnquist view, backed only by Scalia and Thomas, would have given new power to state legislatures to control presidential election battles. Under this “independent state legislature” theory – which was revived by Trump supporters in 2020 and is at the heart of a pending North Carolina dispute – state courts lack the authority to find that a state legislature’s electoral practices violate the state’s constitution.
Kennedy had foreshadowed his reluctance to accept that theory during the Bush v. Gore oral arguments. “It seems to me essential to the republican theory of government that the constitutions of the United States and the states are the basic charter, and to say that the legislature of the state is unmoored from its own constitution, and it can’t use its court … (is) it seems to me a holding which has grave implications for our republican theory of government.”
O’Connor, similarly breaking from the Rehnquist view, wrote Kennedy a note on December 12 that she would join his per curiam opinion.
We’ve previously discussed Rehnquist’s theory here at length (see, “Independent State Legislature Theory” and “Rehnquist and the ‘Independent State Legislature’ Theory“). While I had been aware that this was the position he took in his concurring opinion, I don’t believe that I had previously seen that it had been the prevailing theory of the majority prior to O’Connor and Kennedy steering it to a much more narrow basis.
While we could tell from the dissents by the liberal justices that the ruling sparked considerable tension among the Justices, the newly released documents provide new insights into just how bitter the dialog was.
“Going home after a long day,” Scalia wrote to fellow justices when it was all over on December 12, “I cannot help but observe that those of my colleagues who were protesting so vigorously that the Court’s judgment today will do it irreparable harm have spared no pains – in a veritable blizzard of separate dissents – to assist that result. Even to the point of footnote 4 in Ruth’s offering (I call it the Al Sharpton footnote), alleging on the basis of press reports ‘obstacles to voting disproportionately encountered by black voters.’”
Well-known for his take-no-prisoners dissenting views, Scalia added, “I am the last person to complain that dissents should not be thorough and hard-hitting (though it would be nice to have them somewhat consolidated). But before vigorously dissenting (or, come to think of it, at any other time) I have never urged the majority of my colleagues to alter their honest view of the case because of the potential ‘damage to the Court.’ I just thought I would observe the incongruity. Good night.” He signed it, “Sincerely, Nino.”
In their opinions, liberal dissenters had emphasized the cost to the court as an institution and, in Breyer’s words, “damage” to the country.
Similarly, Kennedy wrote to colleagues that same day, “I do not usually respond to dissenting opinions, and will not do so for the per curiam in this case. I take the occasion in this memo, however, to say that the tone of the dissents is disturbing both on an institutional and personal level. I have agonized over this and made my best judgment. Some of the dissenters in fact agree on the equal protection point, but take great pains to conceal that agreement. The dissents, permit me to say, in effect try to coerce the majority by trashing the Court themselves, thereby making their dire, and I think unjustified, predictions a self-fulfilling prophecy.”
