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How five voted for millions

One of the darkest hours in the history of the U.S. Supreme Court was Dec. 12, 2000, at 10 p.m., when the five-member conservative majority handed the presidency to George W. Bush over his rival Al Gore.

Despite Florida's 61,000 statewide undervotes _ possible legal votes that had not been counted by the machines _ the high court claimed it was acting in the name of fairness to the state's voters when it overturned a decision by the Florida Supreme Court and stopped the recount.

At the time, there were still six days before the state's electors were scheduled meet and fully 25 days before Congress was to count the electoral votes. Yet the high court claimed there was no more time, effectively anointing Bush the winner in Florida by 537 votes.

With the Supreme Court to reconvene on Oct. 4 with the same group of justices and another potentially tight presidential election around the corner, it is worth revisiting this travesty.

Blatant partisanship was what made Bush vs. Gore such a blow to the integrity of the Supreme Court. In any number of ways the justices in the majority contorted the law and normative court procedure to reach the result they wanted.

The conservative bloc second-guessed the Florida Supreme Court on what had been a perfectly plausible interpretation of state law _ something the court in the past said it would not do. And the court hung its rationale on an equal protection argument _ condemning the Florida high court for failing to establish a uniform standard for vote counting during the recount _ such as that ballots with hanging chads should be counted but those with pregnant chads (not punched through) should not. In accordance with precedent, the Florida court had left it to local elections officials to ascertain voter intent on each ballot.

Yet the justices knew that such a marked expansion of the Constitution's equal protection guarantees _ one that said all votes had to be subject to uniform consideration _ could cast doubt on the fairness of all state elections. Various voting methodologies, from optical scan machines to punch-card balloting, have starkly differing error rates.

So to avoid really meaning what it was saying, the majority's unsigned decision limited the reach of the ruling to the Bush vs. Gore case alone. No precedent here, just convenient law made for this one occasion.

Justice John Paul Stevens bemoaned this legal legerdemain in his dissent: "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."

Stevens knew what went on behind the scenes and just how politicized and results-oriented the case's consideration had been. Now, thanks to a masterpiece of reporting in October's Vanity Fair, we know too. Reporter David Margolick headed a writing team that spoke with a number of former Supreme Court clerks who were there when the Bush case came before the court. Though most of Margolick's sources were former clerks for the liberal justices, some were from the conservative side as well.

While the clerks had pledged to keep the details of their tenure confidential, Margolick wrote that the clerks felt they were witnesses to an abuse of power and didn't feel obliged to shield those actions.

The Supreme Court stepped into Florida's recount twice. The first time all nine justices signed an opinion asking the Florida Supreme Court to clarify its ruling allowing a recount to proceed, though, according to Margolick, the liberal justices Stevens, Stephen Breyer, David Souter and Ruth Bader Ginsburg really thought the court should never have taken the case in the first instance.

Then, on Dec. 8, 2000, the Florida Supreme Court surprised everyone by addressing the high court's concerns and ordering a statewide recount of the undervotes. The Bush legal team ran back to the Supremes asking for a stay to stop the recount. (At one point Bush's lead had withered to 154 votes.)

Margolick reports that Justice Antonin Scalia was so anxious to shut the recount down that he pressured his colleagues to do so even before the Gore legal team had a chance to respond. That didn't happen, but consideration of the matter was moved up to the next morning. On the 9th, a stay was issued.

According to Margolick, the court's more conservative members, Chief Justice William Rehnquist, Justices Scalia, Clarence Thomas, Sandra Day O'Connor and Anthony Kennedy, quickly started "sending around memos to their colleagues, each of them offering a different rationale for ruling in Bush's favor." They were "auditioning arguments," Margolick wrote. During the first go-round, Margolick reports, an O'Connor clerk told fellow clerks that "O'Connor was determined to overturn the Florida decision and was merely looking for grounds."

This was a court unhinged from the law, operating in a purely political guise, bereft of legitimacy.

Last week, before a friendly conservative audience, Scalia openly lamented the willingness of the Supreme Court to consider highly charged political questions on the death penalty and abortion, saying these issues should be left to the states. Funny, he didn't seem at all bothered that the court invaded state jurisdiction to choose a president.

Scalia's got a warped mirror. It is he who has damagingly politicized the court; and no doubt he would do it again if given the chance.