58 pages • 1 hour read
Jeffrey ToobinThe Nine: Inside the Secret World of the Supreme Court
Nonfiction | Book | Adult | Published in 2007A modern alternative to SparkNotes and CliffsNotes, SuperSummary offers high-quality Study Guides with detailed chapter summaries and analysis of major themes, characters, and more.
Part 2, Chapters 11-13Chapter Summaries & Analyses
Part 2, Chapter 11 Summary: “To the Brink”
The first of three chapters devoted to the Supreme Court’s role in the 2000 presidential election, Chapter 11 begins by addressing the partisan nature of most of the justices. Only Souter and Stevens, Toobin claims, had no interest in politics. Perhaps the justice with the most interest was O’Connor, who was friends with George H. W. Bush and his wife, Barbara, and found George W. Bush, the Republican candidate, to be an attractive candidate in 2000. O’Connor and her husband, John, attended an election party with friends on November 7 that year. At one point, O’Connor was heard saying, “This is terrible. That means it’s over” (143), when Florida was called at first for Vice President Al Gore (it was later too close to call).The meaning of that was ambiguous, but her husband had also confided to friends that she wanted Bush to win so that she could retire (and did not want a Democrat to name her replacement).
The close election in Florida, whose electoral votes would decide who became president, set off a series of events without precedent in U.S. history. An automatic recount was done based on the close results, which showed Bush winning by 327 votes. A controversy arose in Palm Beach County, the most Democratic-leaning in the state. Because of the large number of elderly residents, the ballots had been printed in larger print than elsewhere in the state, which had changed the layout of the text and the candidates’ names in a way that might be confusing. This was indicated by the fact that a third-party candidate received more than double the votes in this county than in any other in the state. In other counties, the voting machine recorded some ballots as having no preference—called “undervotes” (146). As a result, the Gore team asked for a manual recount Palm Beach County and three others. The Bush team then filed a lawsuit in a federal court to prevent this, arguing that a recount in only selected counties violated the Equal Protection Clause of the 14th Amendment. However, it was dismissed as something that fell under state jurisdiction.
Thus began a month-long saga of legal action that ended up involving the Supreme Court. Florida state law said that any recounts should be completed within one week of an election but that this deadline could be extended by the secretary of state, who at the time was Katherine Harris. Although she had been co-chair of Bush’s Florida campaign, she was the arbiter over the election results. When she did not extend the deadline, the Florida Supreme Court stepped in to do so and schedule a full argument for the case for November 20. If Harris seemed to lean toward Bush, the state supreme court members (all of whom were appointed by Democratic governors) appeared to lean toward Gore. The court ruled that the recount should continue for five more days and then Harris could certify the results on November 26. However, the extension seemed arbitrary and was given without explanation, leaving the situation in some controversy.
One of the advisers to the Bush team was John Roberts Jr. (later the Supreme Court’s chief justice), who was one of the few who believed that the Supreme Court would take the case—and if they did, that Bush would win. The Bush team thus filed their petition for the Court—called “certiorari” or “cert” (152) for short—on the day before Thanksgiving, November 22. It referred to three areas with potential problems: that the Florida Supreme Court had violated federal voting laws; that it violated Article II of the Constitution, which gave state legislatures power over elections; and that the recount violated the Due Process and Equal Protection Clauses of the Constitution. But Toobin argues that the real impact of the petition lay in its wording, appealing to the justices’ ego by talking up the situation as dire, one that the Court alone had the gravitas to settle. Justice Kennedy had long seemed itching to take the case, but many of the other justices also had a healthy sense of their importance and the need for them to resolve the situation.
The Bush Team had also asked for expedited consideration of their petition, and in departure from the norm, the Gore team never got a chance to respond to it. The justices voted 5-4 to take the case and hear oral argument on December 1 (the petition had requested December 5). This again was unusual: the Court rarely granted a sped-up schedule and never granted it even earlier than requested. As of December 1, “the issue before the justices didn’t matter anymore” (153). Events in Florida had progressed beyond the protest from the Gore camp that was the basis of case; only some of the recounts had been completed in time and Secretary of State Harris had declared Bush the winner. The justices were divided about what to do in their discussion in conference. In the end, they did not act on the federal issues presented by the case but expressed some confusion about the exact reasoning of the Florida Supreme Court’s decision for a recount, charging that court to clarify itself.
Part 2, Chapter 12 Summary: “Over the Brink”
The same day that the Court’s decision was announced, a court in Florida decided on Gore’s challenge to the vote count certification. While admitting that there were inaccuracies, the judge ruled that another recount would probably not change the results. This was appealed to the Florida Supreme Court, which, on December 8, ruled in favor of another manual recount not only of the original four counties in question but of undervotes in all state counties. The Bush team was larger and more polished than Gore’s, and they had prepared for nearly every possibility. Thus, by that same night, they were able to submit a petition for cert to the Supreme Court to intervene and countermand the state supreme court. Not only were they asking the Court to take the case, they requested an immediate stay to stop the recount that had begun. The legal grounds were Article II of the Constitution and the Equal Protection Clause of the 14th Amendment. The justices’ divisions were beginning to show, intensified by squabbling among their law clerks, who were more polarized that year into liberal and conservative camps. Scalia wanted to agree to all the Bush camp’s requests without even hearing oral argument, but Stevens persuaded Rehnquist to at least schedule a conference, which was set for ten the next morning, a Saturday.
The recount in Florida was directed by a judge in Tallahassee named Lewis, who planned for all counties to also start work by ten that Saturday morning. Judges across the state had volunteered and the recount began smoothly. Toobin writes that the main argument of the Bush camp had always been that the situation was chaotic, which would lead to inaccurate results, but “judges and county workers of all political persuasions were refuting that proposition” (161). Back in Washington, the justices agreed 5-4 to grant a stay and schedule oral argument for Monday. Stevens wrote a dissent, pointing out, as Toobin emphasizes, that a recount of legal ballots “could never constitute an ‘irreparable harm’—which stays are supposed to prevent” (163). Incensed, Scalia delayed the stay by taking time to write a response, arguing that a recount would call into question Bush’s legitimacy before the legality of the recount could be determined.
Part 2, Chapter 13 Summary: “Perfectly Clear”
That Sunday at the Court was quiet, with the exception of the law clerks working behind the scenes. The atmosphere among them was still tense, with each side thinking the other was trying to steal the election. Justice Breyer thought he had a solution for compromise. A glaring omission in the Florida Supreme Court’s decision was failing to set a single statewide standard for the recount, and Breyer thought it best to send the case back to them with orders to set such a standard and begin the recount. He had his clerks looking for justices who might be persuaded by this approach. The only possible two were O’Connor and Kennedy: the former had already made up her mind but the latter was a possibility.
When the Court convened the next morning, Kennedy began by asking the counsel for Bush what the federal issue was, appearing to doubt need for the Court’s involvement based on the Article II argument. However, he seemed to give more weight to the Equal Protection argument. Breyer raised his proposed solution, which the counsel reluctantly agreed would be possible. In conference afterward, Rehnquist, Scalia, Thomas, and O’Connor wanted to reverse the Florida Supreme Court’s decision, while Ginsburg, Stevens, Breyer, and Souter wanted to uphold it. Thus, it came down to Kennedy’s vote.
They began drafting opinions to circulate. Rehnquist wrote one on the basis of Article II, while Kennedy thought the Equal Protection Clause was more appropriate and drafted his opinion from that. Toobin writes that Breyer’s spirit of compromise actually acted against him in this case. Because he also raised the issue of the Florida Supreme Court’s lack of a standard, Kennedy felt more comfortable siding with the conservatives; Breyer’s and Souter’s misgivings gave him cover, in effect. Kennedy’s opinion was the one the majority coalesced around, but O’Connor wanted to make sure this would be directly applicable only to this case. She did not want the decision to gain a life of its own and set a new precedent. As a result, Kennedy added a statement to that effect, which Toobin calls “most notorious sentence in the opinion” (173). Kennedy felt uncertain enough about the result that, in order to make it look like there was less dissent than there actually was, he added ambiguous wording that incorporated Breyer’s and Souter’s misgivings to give the appearance that it was a 7-2 decision. In fact, it was strictly 5-4.
Part 2, Chapters 11-13 Analysis
The emphasis in these three chapters is how unusual the Court’s actions were. Toobin writes that they were without precedent and represented the worst the Court had to offer: sheer political partisanship. There were a few decisive factors and turning points. One was the legal machine the Republicans had assembled. They overpowered the Gore team in terms of both numbers and tactics. One key player was John Roberts, who had clerked for William Rehnquist and urged the Bush team to appeal to the Supreme Court, believing that they would take the case and, if they did, that Bush would win.
A second factor was the decision to take the Bush case on Saturday, December 9, and issue a stay to stop the recount. First, events in Florida were moving faster than the Court could keep up. Toobin points out that the Court’s actions were moot at that point because a federal appeals court in Florida had forbidden Harris from declaring anyone but Bush the winner. So even if the recount had resulted in more votes for Gore than for Bush, it would not, for the moment, change the result. Second, as Stevens noted in his dissent, it was unusual, to say the least, that counting votes—the will of the Florida voters—constituted “irreparable harm” (162), the standard for issuing a stay. Stevens continued by arguing that elections were a state matter, which the Court had always deferred to.
Finally, the fact that the final decision to reverse the Florida Supreme Court’s ruling for a recount was written so as to apply only to this case was at cross-purposes with the role of the Court. Kennedy added this statement at O’Connor’s behest, and Toobin argues that “[m]ore than any other, this sentence invited skepticism about the majority’s true motives in the case” because the purpose of the Court “is to take cases that establish principles of general application” (173). Here, because it just picked a winner in one specific case, Toobin concludes that “the Court as an institution and the justices as individuals failed” (176).
Related Titles
By Jeffrey Toobin
