Why did Justice O’Connor abandon her own Article II argument in Bush v. Gore?

Yesterday, I looked at the draft memorandum Justice Sandra Day O’Connor circulated on December 10, 2000, ahead of the December 11 oral argument in Bush v. Gore. Her memorandum focused on Article II. By December 12, however, the per curiam opinion was released with an Equal Protection Clause argument as its basis, and her argument on Article II was left to Chief Justice William Rehnquist to make in a concurring opinion.

Why did she abandon it? We have some details from a 2004 Vanity Fair story, which essentially parrots the timeline we see from the documents released this week, but we still do not have a great answer.

Vanity Fair in 2004 framed the O’Connor memorandum as follows:

The brother of a Ginsburg clerk, who covered legal affairs for The Wall Street Journal, had learned that the paper would soon report how, at a party on Election Night, O’Connor was overheard expressing her dismay over Gore’s apparent victory. Once that information became public, the liberal clerks felt, O’Connor would have to step aside. When, on the night before the Court convened, she sent out a sealed memo to each of her colleagues, those clerks hoped this had actually come to pass. In fact, she was merely stating that she, too, felt the Florida Supreme Court had improperly usurped the state legislature’s power.

The summary of this memorandum as one of the legislative power being “usurped” is about the Article II argument. Vanity Fair continues,

When Gore’s lawyers came to the Supreme Court for oral arguments on the morning of December 11, they felt that the Bush team’s jurisdictional argument, that the Florida Supreme Court had overstepped its bounds, was a loser because it emasculated one appellate court more than any other appellate court would ever want to condone. And, though they didn’t know it, Justice Kennedy agreed with them. In a memo circulated shortly before he took the bench, he endorsed what O’Connor had written the night before, but declared that it would not be enough: to carry the day, he argued, the conservative justices needed to assert that evaluating ballots under different standards in the various counties violated the equal-protection clause.

Joan Biskupic at CNN has more details on this memo from Justice Anthony Kennedy: “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.”

At oral argument, as the CNN piece and Vanity Fair piece each recall, Kennedy opens with skepticism about the Article II argument. O’Connor follows with a small concession (one she does pursue the rest of argument): “I have the same problem Justice Kennedy does, apparently . . . .” This exchange between Ted Olson and Kennedy, highlighted in Vanity Fair, points to Kennedy’s direction:

Olson: Because we argued, and I believe that there is a very firm basis for saying that that process already had violated Article II of the Constitution.

It was also already throwing in jeopardy compliance with Section 5 of Title 3 because the laws had been changed in a number of different respects and we have recited them.

The timetables are important.

Kennedy: Oh, and I thought your point was that the process is being conducted in violation of the Equal Protection Clause and it is standardless.

But throughout argument, O’Connor continued on the Article II issue. Partway through the argument in an exchange with David Boies, O’Connor reflected, very much with a focus on Article II putting presidential elections on a different footing:

You are responding as though there were no special burden to show some deference to legislative choices.

In this one context, not when courts review laws generally for general elections, but in the context of selection of presidential electors, isn’t there a big red flag up there, watch out?

. . .

That’s, I think, a concern that we have, and I did not find really a response by the Florida Supreme Court to this Court’s remand in the case a week ago.

It just seemed to kind of bypass it and assume that all those changes and deadlines were just fine and they would go ahead and adhere to them, and I found that troublesome.

Immediately after oral argument, the justices convened to discuss. Lawrence Hurley shares this image of Justice John Paul Stevens’s notes. O’Connor would speak third, and she opened her remarks with the same remarks of her memo. “Fed Q – Art II – Plenary Power,” Stevens notes, “Must follow leg.”

Kennedy spoke fifth, but he opened with “ad hoc” concerns and “eq pro violation.” (He also lamented, “Fla ct did not respect our dec[ision]”.)

Even after oral argument, it seemed very much like O’Connor endorsed the Article II claim, not the Equal Protection Claim.

After this, Vanity Fair reports, “Rehnquist was writing what he thought would be the majority opinion, reversing the Florida court on both the jurisdictional and equal-protection grounds.” (By “jurisdictional,” Vanity Fair really means the Article II Legislature Thereof Clause argument.)

Biskupic reflects from the files,

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 . . . .

Biskupic continues, “O’Connor, similarly breaking from the Rehnquist view, wrote Kennedy a note on December 12 that she would join his per curiam opinion.” Likewise, Vanity Fair tells the tale:

Late Tuesday morning, it became apparent that Kennedy and O’Connor would not join Rehnquist’s opinion on jurisdiction, and would decide the case strictly on equal-protection grounds. Nowhere did O’Connor explain why she had abandoned what she had written on the jurisdictional matter in her memo the night before.

Again, note that the “jurisdictional” argument was the Article II argument. (And O’Connor abandoned it.) We don’t see detail from Biskupic on this about why O’Connor changed her vote.

And maybe we’ll never know, or at least will not know until we see O’Connor’s papers. Vanity Fair offered no particular insight, either. But from Vanity Fair, some speculation from clerks:

To clerks on both sides of the case, what appealed both to her and to Kennedy about invoking equal protection was that it looked fair. “It was kind of a ‘Keep it simple, stupid’ kind of thing,” one liberal clerk theorizes. Or, as a conservative clerk puts it, “they thought it looked better to invoke these grand principles rather than Article II, perhaps because it makes them look better in the press and makes them look like heroes.” Their opinion, written by Kennedy, was joined by the other three conservative justices.

Another possibility, of course, is that O’Connor helped guarantee Kennedy’s vote, as he was not inclined to endorse the Article II claim.

As a post script, it’s worth noting that in 2004, in an Article I Legislature Thereof Clause case, Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, dissented from the denial of certiorari. O’Connor is nowhere to found (and would have been the fourth vote to grant certiorari if she joined them).

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