COURT  (CONT)

As was customary, the Court did not detail how many justices had voted to hear the case, or who they were, and Gore's lawyers didn't really want to know. At that point, they felt a certain faith in the institution and in the law; it was inconceivable to them that the Court would intercede, much less decide the presidency by a vote of five to four. ...

Certainly, that was what the justices who'd opposed taking the case believed. Convinced the majority would reverse the Florida court, they began drafting a dissent, even before the case was argued in court. ... With the assistance of Justices Stephen Breyer, David Souter, and Ruth Bader Ginsberg, Stevens laid out why the Court should never have accepted the case.

Moreover, the Rehnquist Court had always stingily construed the equal protection clause of the 14th Amendment, enacted after the Civil War to protect freed slaves, applying it only when discrimination was systematic, blatant, intentional, incontrovertible. It was not surprising, then, that the Court had originally declined to hear arguments on the point, or that, when they returned to the Court, Bush's lawyers had given those arguments only 5 pages in a 50 page brief.

Stevens was drafting the principal dissent; it would reiterate what he'd written in the unused dissent from the first round, but shorn of all legalese, in order to be easily understood by ordinary people. It chastised the Court for holding the justices of the Florida Supreme Court up to ridicule. "Although we may never know with complete certainty the identiy of the winner of this year's Presidential election, the idenity of the loser is perfectly clear," it stated, "It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

For better or worse, Ginsburg wrote, disparities were a part of all elections; if there were any equal-protection concerns at all, she wrote, they surely applied more to black voters, noting a New York Times report that a disproportionate number of blacks had encountered problems voting. Though racial questions already hung over the Florida vote, hers was to be the only reference to race in any of the opinions, and it was relegated to a footnote.

In an act of moral cowardice, Ginsburg was bullied into removing the only reference to racial discrimination in any of the decisions.

As the drafts began circulating, tempers began to fray. In an unusual sealed memo-an unsuccessful attempt to avoid the clerks' prying eyes-Scalia comlained about the tone of some of the dissents. He was, he confessed, the last person to criticize hard-hitting language, but never had he, as the dissenters were now doing, urged the majority to change its decisions based on its impact on the Supreme Court's credibility. He charged that his opponents in the case were inflicting the very wounds to the Court that they had supposedly decried. As Jeffrey Toobin first reported, he objected in particular to what he called the "Al Sharpton footnote" in Ginsberg's dissent: her comment on Florida's dis-enfranchised black voters. Whether out of timidity, collegiality, or affection-Scalia was her closest friend on the Court-Ginsburg promptly took it out. "It was the most classic example of what kind of bully Scalia is," says one clerk, who called Scalia's complaint "an attempt to stifle legitimate discourse worthy of Joe McCarthy. As for Ginsburg, this clerk says her response "showed a lack of courage."

There were two more extraordinary passages: first, that the ruling applied to Bush and Bush alone, lest anyone think the Court was expanding the reach of the equal protection clause; and, second, that the Court had taken the case only very reluctantly and out of necessity. "That infuriated us,: one liberal clerk recalls. "It was typical Kennedy bullshit, aggrandizing the power of the Court while ostasibly wringing his hands about it.

According to David Kaplan of Newsweek,Breyer told a group of Russian judges that the decision was "the most outrageous, indefensible thing" the Court had ever done, while Souter complained to some prep-school students that had he had "one more day-one more day," he could have won over Kennedy.

O'Connor confessed surprise at the anger that greeted the decision ... Around Washington, a few people stopped shaking her hand, and Justice Scalia's too; the consensus has since grown that because of Bush v. Gore he can never be named chief justice.

Alan Dershowitz has covered a lot of this ground in his book, "Supreme Injustice: How the High Court Hijacked Election 2000." Don't let them forget or ignore what they did in 2000.