September 23, 2004

What, if Anything, Does the Vanity Fair Article Tell Us About Bush v. Gore?

For Supreme Court and election law junkies, the Vanity Fair article is a very interesting read (though I can't say I disagree with Will Baude's comment that the article has a "relentlessly partisan tone"). As a matter of pure prurient interest, it is hard to beat the article's quoting of Justice Scalia as saying the following about the majority opinion: "Like we used to say in Brooklyn...it's a piece of shit." Scalia denies disparaging the majority opinion. He signed a concurrence raising a separate rationale for ending the recount.

I think drafting histories can be useful, and have used them in my work, in understanding apparent gaps or inconsistencies in opinions. In this regard, the most valuable insight of the VF article, if it is to be believed, is how the dissenters dealt with the equal protection argument put forward by the majority. The article suggests that the dissenters failed to respond to the equal protection argument because it was not clear until near the end that this (rather than the Article II argument) would be the basis for the majority opinion. The article also states that Justice Kennedy added a line about seven justices agreeing with the equal protection rationale (but not the remedy) too late in the process for the dissenting Justices to do anything about it. (It states that it originally said 8 justices, until Justice Stevens protested, and later failed to concur in the relevant portion of Justice Breyer's dissent.) Regarding the equal protection language in the Souter and Breyer opinions, the article also notes that "whether [Justices Souter and Breyer had] come to believe that judging ballots under different criteria was really unconstitutional, or were still chasing after Kennedy, was never clear."

Finally, the article states that Justice Scalia convinced Justice Ginsburg to drop a footnote on disenfranchised black voters. (The article states that this "Al Sharpton footnote," as Scalia allegedly called it, was ostensibly wounding the Court's credibility.)

Of perhaps most interest is the fact that these clerks---again assuming the truth of the reporting---have chosen to talk about such a recent event on the Court involving sitting Justices with such detail and candor.

Posted by Rick Hasen at September 23, 2004 03:17 PM