Book Excerpt: 'Supreme Conflict'


But the conservative justices say politics didn't drive them. Kennedy says he took a long walk around the hallways of the Supreme Court and imagined how he would have seen the case if the parties had been reversed. He concluded that he would have decided it the same way. The conservative justices believe that the country was in crisis, and they insist that they had a duty to step in and make the hard decisions. The Florida Supreme Court was a rogue state court "off on a trip of its own," as O'Connor puts it, ordering up recounts but without clear and uniform standards for doing it. The justices, she argues, had no choice but to step in.

"A no-brainer! A state court deciding a federal constitutional issue about the presidential election?" Kennedy exclaimed, in an interview nearly six years later. "Of course you take the case."

The Supreme Court didn't ask to get involved, defenders like Kennedy and O'Connor say. It was Al Gore who started the recount battle. "It would be odd if the people that brought the litigation would later say the courts shouldn't intervene,"Kennedy says today. "We didn't say the case should go to the court. Those were the other parties that made that decision for us. And for us to say, 'Oh, we're not going to get involved because we're too important,' well, you know, that's wrong."

O'Connor is less forceful in her analysis. She ruefully notes that subsequent media recounts of the disputed ballots indicated Bush would have won Florida.20 The outcome would have been the same, she says, even without the Supreme Court's involvement. "It's not correct to say the Court determined the result. The voters determined the result, and it never changed,"O'Connor says today. "Could we have done a better job? Probably. But it wouldn't have changed the result."

Whether the decision elected a president or not -- and media recounts of ballots in the contested counties support O'Connor's contention -- this was a Court that possessed a sweeping sense of its role in refereeing disputes of enormous national importance. A judicial approach that had infuriated and motivated conservatives for decades was entirely pleasing to them as Bush v. Gore unfolded. And if the conservative justices were driven by a political or ideological motive to rule in a way that guaranteed Bush's election, their decision paid multiple dividends. It gave the new president a chance to appoint two or three justices who would hold a much more restrictive view of their roles on the bench.

The Court stayed together for five years after Bush v. Gore, denying George W. Bush a nomination in his first term. In that time, the Court's moderates embraced sweeping liberal rulings on key social issues, further disappointing conservatives. With Sandra Day O'Connor's retirement, Bush would now have the chance to succeed where his father and so many other Republican presidents had failed. If he got it right, he could make history. The burden of reshaping the Supreme Court would be placed on Bush's administration and his GOP majority in the Senate. The battle for the Supreme Court's future was about to begin.

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