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[GreenYes] Wondering about US Supreme Court
- Subject: [GreenYes] Wondering about US Supreme Court
- From: Ann Schneider <email@example.com>
- Date: Thu, 25 Jan 2001 18:38:28 -0800
Election decision still splits court
By Joan Biskupic, USA TODAY
>From the website: http://www.usatoday.com/hphoto.htm
01/22/2001 - Updated 08:32 AM ET
WASHINGTON — Six weeks after an uneasy U.S. Supreme Court cleared the
way for Republican George W. Bush to become president, the scars left
on the nation's highest court by the Florida election case are
The court's nine justices, uncomfortable with their role in such a
high-stakes political contest, have remained tense with one another
since the 5-4 ruling that shattered many Americans' image of the
court as an institution above the partisan politicking that goes on
across the street in Congress.
The court has been slow to get back into its routine caseload, and
justices have been meeting with each other and their staffs to try to
ease any lingering bitterness and to boost morale. The justices'
clerks, the young and ambitious worker bees behind the court's white
marble edifice, nevertheless are nursing grudges.
Meanwhile, the court has been bombarded with thousands of letters
from angry Americans, some of whom have sent in their voter
registration cards, suggesting that going to the polls in November
was a waste of time. "For shame!" one letter said. Many messages to
the justices have been sarcastic, others more menacing — including
one with an illustration of a skull and crossbones.
More significantly, there are signs that the fallout from Bush vs.
Gore has become a factor in at least one justice's yearnings for
retirement. Sandra Day O'Connor has told people close to her that in
her two decades on the court, she's never seen such anger over a
case. O'Connor, more than any justice, has seemed disturbed by the
public wrath directed at the court.
People who know the 70-year-old justice's personality and politics
believe the election fallout — and a desire to spend more time with
her husband, John O'Connor, as he faces health problems — could lead
the nation's first woman justice to retire as soon as this summer,
when the 2000-2001 term ends. John O'Connor, 71, a lawyer, had a
heart pacemaker implanted in 1999 and has had more health problems
since, say people close to the couple.
Justice O'Connor refuses to comment on such speculation and has gone
about hiring staff for next year. If she were to leave the Supreme
Court, it would give President Bush a chance to have an immediate
impact on the court. Bush says he wants judges who will
conservatively interpret the Constitution, and has held up Justices
Antonin Scalia and Clarence Thomas as models.
Others in the new administration invoke a "no more David Souters"
mantra, referring to the justice appointed by Bush's father in 1990.
Souter is far more moderate than conservatives expected and regularly
votes with the court's liberal wing. O'Connor often casts the
deciding vote and, as a swing justice, crafts the court's rationale
on some of the most hotly debated issues, including abortion rights,
affirmative action and the line between federal and state power.
In the Florida case, she sided with the court's conservatives in
supporting Bush's argument and blocking Democrat Al Gore's push for
further ballot recounts. Sources say the decision was particularly
uncomfortable for O'Connor, in part because she, along with Chief
Justice William Rehnquist, 76, stood as potential beneficiaries of a
Bush election victory. Both have considered retirement, and it's
accepted among court analysts that the two justices, both
Republicans, would prefer that a GOP president name their successors.
Rehnquist's distaste for the scenario that put the election in his
court's hands was apparent during an address on Jan. 1, when he
departed from protocol by mentioning a specific case that had come
before the court — the Florida recount dispute. He said he hopes such
a case never again lands at the court.
"This presidential election tested our constitutional system in ways
it had never been tested before," said Rehnquist, who joined O'Connor
in the majority. He said he hopes such involvement "will seldom, if
ever, be necessary in the future."
The Florida case cast an unwanted spotlight on a court that is
unaccustomed to significant public attention, much less harsh
criticism. It is an insular place of strict decorum and deliberate
mystery. Justices rarely agree to be quoted, and their clerks are
pledged to secrecy.
But an examination of the court's activities and interviews with more
than two dozen people close to the justices reveal new details about
the fallout from the Florida ruling, and about the court's struggle
during the second week of December to reach a decision as an anxious
The roots of discord
On Dec. 12, a flurry of holiday cheer in the building masked the
wrenching negotiations behind the scenes over the Florida case. As a
team of workers put colored lights on the court's 22-foot Christmas
tree in the Great Hall, the nine justices were in their chambers,
wrangling over the law.
At the start, it didn't seem so hard. In the early deliberations the
five conservative justices who on Dec. 9 had halted the recounts
ordered by the Florida Supreme Court — O'Connor, Rehnquist, Scalia,
Thomas and Anthony Kennedy — seemed to be on the same page. In fact,
Rehnquist initially believed a decision would come on Dec. 11, the
day the court heard oral arguments in the historic case. The chief
kept the courthouse staff on duty late that day.
But shortly after the staff ordered Chinese carryout, it was told to
go home. One factor that complicated things was a decision by the
Florida Supreme Court that evening in which the state court clarified
its grounds for intervening in the ballot controversy. That made it
more difficult for the justices to assert that the state panel had
improperly set new rules of state law.
The five conservative justices fractured into essentially two camps:
Rehnquist, Scalia and Thomas, who continued to believe the Florida
court had acted illegally and infringed on legislative power; and
O'Connor and Kennedy, who agreed that any recounting would be
improper but were turning to alternative grounds, the different
standards that Florida counties had been using for recounts. They
believed this could violate the Constitution's guarantee of equal
protection under the law.
Meanwhile, those two justices were being pressured by two of the
court's four liberals — Souter and Stephen Breyer — to adopt a
compromise that would acknowledge the lack of standards for recounts
but permit a review of the disputed ballots to continue under new
Kennedy, who was especially worried about the various county
standards for determining voter intent, took on the responsibility
for writing much of what became the court's unsigned decision. But he
has a slow, deliberate style that works against him when under
pressure. Court sources say that he at times simply froze.
In the Florida case, crafting a constitutional principle that spoke
for any majority would have been difficult for the swiftest writer.
What finally was released the night of Dec. 12 — two hours before a
midnight deadline that would have raised the possibility of
congressional intervention — was a thin mix of precedent and legal
reasoning. The court's decision stopping the recounts was a novel
interpretation of the Constitution's guarantee of equal protection
that included a declaration that the ruling shouldn't affect other
Agreeing to the opinion were Rehnquist, O'Connor, Kennedy, Scalia and
Thomas — all ideological, if not political, conservatives. The
liberals — Souter, Breyer, John Paul Stevens and Ruth Bader Ginsburg —
Souter and Breyer, who shared concerns about a statewide standard,
had fought hard for a compromise. They wanted to avoid a ruling that
would seem little more than a political calculation. More
importantly, they believed that Florida's disputed ballots had to be
tallied to make the election results credible.
They tried to identify with the concerns of O'Connor and Kennedy. But
as time ran out, O'Connor and Kennedy said there was no practical way
to swiftly set new standards. Rebuffed, Breyer and Souter left the
courthouse in frustration.
The two other dissenters were no less unhappy. Stevens said the
decision wounded the nation and would undercut its respect for
judges. In Ginsburg's dissenting statement, she dropped the
customary "respectfully," from her closing words and said only, "I
Repairing the damage
There is a philosophy among the justices that rehashing a case or
holding a grudge is useless and counterproductive. As lifetime
appointees, they must return to each other's company. The justices
are known for saying that they decide a case and move on, and in fact
Thomas said shortly after the Florida ruling that the court was doing
But this case — which exposed the court to public outrage it hadn't
faced in decades — wasn't easily filed away.
While many Americans supported the ruling and wanted the recount
debacle over, "a lot of the public is looking at this as a bad call
in the seventh game of the World Series," Stanford University law
professor George Fisher says. "It's not surprising to have unusual
tensions over this case."
When the justices returned to the bench this month for the first
round of oral arguments since the ruling, they seemed both wearier
and testier. O'Connor, who often snaps at the lawyers who come before
the court, at times has been visibly impatient with her fellow
justices. In one citizenship case, she implied that her colleagues'
questions were inconsequential and, in a voice dripping with
annoyance, told the lawyer at the lectern, "I'm concerned that your
time will expire before you've addressed either point that may be
The justices have been slower to resolve cases that are pending from
oral arguments in the fall. So far this term, the court has issued
only about half the number of major rulings it usually puts out by
the four-week winter recess, which begins today. This will be the
first time in at least a decade that on the last court day before the
recess, the justices have no decisions ready to hand down.
Meanwhile, signs abound that some justices are trying to help the
O'Connor and Breyer have lunched in private, and individual justices
have met with their young clerks to try to keep them from becoming
disillusioned by the fallout from the Florida case. Sources say that
some clerks for the liberal justices are dismayed at the court's role
in the case, while clerks for conservative justices believe the
ruling was one of integrity and are angered by nationwide criticism
of the court.
That criticism began close to home, with the resignations of a few
members of the Supreme Court bar, the group whose members are
eligible to argue before the justices. Although such a move is
largely symbolic — most of the tens of thousands of lawyers qualified
to practice before the court never actually get the opportunity —
court officials cannot recall lawyers ever protesting a ruling in
such a way.
Beyond Washington, the court's ruling has been skewered by some legal
A refrain that has become popular among dissatisfied law professors
is, "What will I tell my students?" Yale University law professor
Akhil Amar answered that in an opinion piece in the Los Angeles
Times: "It will be my painful duty to say, 'Put not your trust in
Michael Greve of the American Enterprise Institute wrote in the
conservative Weekly Standard, "It would be silly to deny that
partisan considerations influenced the justices' rulings."
Court observers say that while certain justices have been barraged by
mail after controversial rulings — Harry Blackmun began receiving
hate letters in 1973 after writing the opinion in Roe v. Wade that
established abortion rights — it is rare that the entire court is
swamped with letters. In the days after the Florida ruling, thousands
of letters poured into the court.
Many voters who wrote the court accused the justices in the majority —
all GOP appointees — of playing politics. "I called them clowns in
robes," says Grandison Bartlett, 74, a retired business manager in
Forked River, N.J. "I figured it was payback time for Republicans."
But court insiders say the reactions that have most shaken the
justices have come from Americans who have questioned the justices'
One widely circulated tale involving O'Connor has it that at an
election night party Nov. 7, O'Connor became visibly upset when
network anchors first said Gore had won the critical state of
Florida. Her husband told others at the party his wife was upset
because the couple wanted to retire and that she preferred a GOP
president name her successor. USA TODAY sources confirmed much of the
story, first reported in the Wall Street Journal and Newsweek, but
some suggest O'Connor was angry that the election was being called
for Gore while West Coast polls were still open. Yet, her husband's
comments fueled speculation that O'Connor is mulling retirement.
"She is more central to the court than anyone," says University of
Chicago law professor Dennis Hutchinson. "She is the one who has
defined the standard for abortion rights, for affirmative action. If
she were to step down, it would be the most important appointment (to
the court) in nearly 15 years."
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