December 11, 2010

Bush v. Gore Reflection: Lyle Denniston

Here is the first of a series of reflections I'll be posting about the tenth anniversary of Bush v. Gore. This one comes from one of the most thoughtful Supreme Court reporters, SCOTUSBlog's Lyle Denniston.

    That night at the Courthouse

    Lyle Denniston (in 2000, the Supreme Court reporter for The Baltimore Sun)

    Not every one who had been watching Bush v. Gore unfold after election day was convinced that the Supreme Court had to decide the issue once and for all before the end of the day on December 12, 2000. However, the Court had signaled eight days earlier, in its first decision overturning the Florida Supreme Court, that it was operating with that deadline in mind.

    It would turn out, of course, that some Justices believed that the deadline was not hard and fast, and that another six days would have been available to conduct a wider recount of the Florida ballots. That revelation, however, would only come out with the release of the decision in Bush v. Gore itself, so reporters in the Court's press room the night of December 12 fully expected a final decision before midnight.

    The feverish activity of the preceding 35 days had left the Court and its staff deeply stressed, since no one of the Justices and no one working for them had ever operated under such heavy and sustained pressure. The quality of legal advocacy, on both sides of the dispute, had been impressive, indeed, and especially so given how little time there was to prepare between each stage of the case's movement up and down through the state and federal courts.

    However skilled a team of lawyers can be when mobilized for emergency duty, it was clear to anyone who observed the Justices up close through the process that they were not likely to do their best, and that the final outcome -- whatever it was -- would probably be very untidy and would have no chance of settling the political side of the controversy. What a majority of the Justices wanted was a result, and they were determined that it be reached and announced on December 12. Only if one believes that a majority actually wanted George Bush to be the winner -- and the author of this post does not believe that -- could one assume that the whole process was being driven toward that specific end. What was driving the majority, perhaps more than anything else, was the spectre of the 1876 election, which dragged out until almost Inauguration Day. There was, it was clear, a firm determination not to let that happen again.

    And, though never publicly expressed, there was, inside the Courthouse, a pervasive sense that the issue had clearly moved beyond a possible congressional resolution: it was seen as a constitutional crisis, and demanded a constitutionally determined result.

    The courthouse itself was not the serene, polished marble palace that it normally is. It had not been, for days.

    Outside, the television trucks dominated the street scene, and the kleig lights set up on the Court's plaza bathed the courthouse at night in an eerie blue light, so bright that the scene looked more than anything else like a hostile border checkpoint in the midst of a battle zone. Inside, the hallways on the first floor, where the press was operating, were strewn with food packages, discarded soda bottles, and uneaten pizza -- the familiar offall of any scene where television crews and their platoons of intern acolytes have taken over a story. (There must be almost a law of nature that dictates how many boxes of pizza it takes for television to cover a major story.)

    At the end of the corridor where the press room is located, reporters engaged in exchanges of unfounded rumors about what was happening. One TV reporter went on the air with a report that a member of the Public Information Office staff was coming down the hallway, carrying a can of soda. There was actually some physical jostling going on, whenever the PIO staff moved around, causing reporters to press in closely to see what the movement meant -- which, usually, was nothing.

    Reporters unfamiliar with the sometimes arcane procedures of the Supreme Court were fretfully interviewing the veterans, to understand what the Court might decide, and how it might do it. In one corner of the press room, three reporters wrote down on slips of paper, tucked into an envelope, stating their own, private predictions of what the Court would decide. One of those slips, indeed, would have it exactly right.

    A few minutes after 10 p.m., two members of the Court's PIO staff left that scene, and went down the hallway to the Clerk's office -- a hint, though not a truly reliable one, that something of consequence was about to happen. Shortly, they ran up the hallway, stormed by reporters -- who had lined up in a sequence that had been agreed upon beforehand, with wire service and broadcast reporters closest to the front of the line, which quickly dissolved into pandemonium. PIO staff usually gives no guidance whatever when they hand out an opinion. This time, however, one of them called reporters' attention to a specific page number.

    That was the page where the Court's majority opinion, in conclusion, said, "The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion."

    It would turn out to be, for some of the reporters, a baffling conclusion. Some, not so familiar with the Court's norms, immediately assumed that the contest was not over. The phrase, "remanded for further proceedings," led some, on cellphones with their editors, to say that the Court had opened the way for further recounting, or at least some other activity with the Florida ballots.

    But for others, that language, by itself, was inconclusive. Reporters more in the habit of working with Supreme Court opinions quickly scanned over the pages of the majority. What stood out quickly, for these journalists, was this statement: "Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed."

    That was it: the election was over, because the case was over. Nothing of import, in reality, was left for the Florida Supreme Court to do in any "further proceedings." The Supreme Court had barred any recount, so the "further proceedings" mentioned would be nothing more than the ministerial act of a state court closing down its own review of the election results, bowing to the Supreme Court.

    The author of this post, immediately on the telephone with his Washington Bureau chief, said it was over, but it took perhaps another ten minutes of conversation to convince the chief. He had been watching the breathless early accounts of TV reporters, who were saying into their live cameras that the Court, in its bottom line, had ordered the Florida Supreme Court to do something more.

    The crisis, so far as it was a constitutional crisis, was over. The Court's majority, in a sentence just before the one closing the opinion, had at last made clear why it believed it, and not "the political sphere," was having the last word. The sentence read: "When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."

    It would convince none of the critics, then or since.

Posted by Rick Hasen at December 11, 2010 05:53 PM