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A recent article in Vanity Fair, "The Path to Florida", strips bare the raw political favoritism that five Supreme Court justices used to select the current President of the United States. Jon Stewart provides the perfect metaphor for Bush v. Gore on the cover of his book, "America (The Book): A Citizen's Guide to Democracy Inaction". We must remind America of the shame that nine naked justices brought on the Supreme Court.
"It was just inconceivable to us that the Court would want to lose its credibility in such a patently political way," one of the clerks recalls. "That would be the end of the court."
If you don't think this story is explosive, check out the reaction of the right wing legal community linked text
Ask yourself why Ted Olson and Ken Starr have already objected to this story. This is a pre-emptive strike to kill this story before it gets off the ground.
This story rates a 7.2 on the legal Richter scale. This is only the second time in history that former Supreme Court clerks have broken the tradition of secrecy that shrouds the words and conduct of the Supreme Court bretheran. Never has such a negative and critical portrayal been made public. This is the story that all nine justices thought would never see the light of day in their lifetime. We need to shine a whole lot of light and even more heat on them so it doesn't happen again.
The Court's proceedings are shrouded in secrecy, and the law clerks, who research precedents, review petitions, and draft opinion, are normally notoriously, maddeningly discreet. In addition, Rehnquist makes them all sign confidentiality agreements, the reiterates the point to them in person. A surprising number of clerks talked to Vanity Fair for this article, however. They all drew clear limits on what they would say. They would not discuss conversations with their respective justices, nor disclose any documents they might have retained.
"In this adminstration, the F.B.I. is likely to come after us," one explains. To the inevitable charges that they broke their vows of confidentiality, the clerks have a ready response; by taking on Bush v. Gore and deciding the case as it did, the Court broke its promise to them. "We feel that something illegitimate was done with the Court's power, and such an extraordinary situation justifies breaking an obligation we'd otherwise honor," one clerk says. "Our secrecy was helping to shield some of those actions."
[T]he justices had always steered clear of messy political spats. Moreover, the very jurists who'd normally side with Bush were the ones most solicitous of states' rights, most deferential to state courts, most devoted to the Constitutition's "original intent" - and the Founding Fthers had specifically provided that the Congress, not the judiciary, would resolve close elections. To top it off, the Court rarely took cases before they were ripe, and the political process in Florida was still unfolding.
The commentators agreed. The New York Times predicted that the Court would never enter the Florida thicket. A law professor at the University of Miami pegged Bush's chances before the tribunal at "between slim and none, and a lot closer to none." As Thanksgiving 2000 approached, the justices and their clerks planned their vacations and scattered, leaving a skeletal staff-generally only one of the three of four clerks assigned to each chamber-behind in case the impossible happened. There was just no way, Justice Stephen Breyer remarked over the holiday, that the Court would ever get involved.
Vanity Fair reveals that the decision to put George Bush in the White House was made as soon as Justice kennedy agreed to accept Bush's petition for certiorari. Each justice is responsible for considering emergency motions in different parts of the country. Florida was Justice Kennedy's turf. It only required three more votes to support his grant of certiorari. The four justices who comprise the conservative bloc signed on: Rehnquist, Scalia, Thomas and O'Connor. At that moment the 5-4 majority vote favoring George Bush was carved out.
Justices Kennedy and O'Connor were never the swing voters that Gore's lawyers thought they were.
[A]n O'Connor clerk said that O'Connor was determined to overturn the Florida decision and was merely looking for the grounds. ... In this instance, one clerk recalls, "she thought the Florida court was trying to steal the election and that they had to stop it."
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