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anthony kennedy
Memo Reveals How Sandra Day O'Connor Helped Get George W. Bush to the White House
The right-wing justice sought to influence the opinions of others on the high court even before they heard arguments in Bush v. Gore.
May 03, 2023
Former U.S. Supreme Court Justice Sandra Day O'Connor played a greater role than previously known in handing the highly contentious 2000 presidential election to George W. Bush, a document released Tuesday by the Library of Congress revealed.
It has long been known that O'Connor—who was appointed by former President Ronald Reagan and was the first woman to serve on the Supreme Court—wanted Bush to win the 2000 election, at least in part because of her right-wing views; her admiration for his father, former President George H. W. Bush; and because she wanted to retire after a Republican president nominated her replacement.
However, the newly released documents—part of a trove of former Justice John Paul Stevens' papers—include a four-page memo O'Connor sent to her colleagueson December 10, 2000, even before they heard arguments in Bush v. Gore. Her memo laid the groundwork for the controversial 5-4 ruling that stopped Florida's court-ordered recount in a too-close-to-call contest between Bush and then-Vice President Al Gore and gave the presidency to the Republican Texas governor.
In her memo, O'Connor attacked the unanimous November 21, 2000 Florida Supreme Court decision that the results of manual ballot recounts in Miami-Dade, Broward, and Palm Beach counties must be included in the final state tally, while giving the three counties five days to certify their results.
"Before there was 2020 there was 2000."
During that period, Bush's legal team appealed to the U.S. Supreme Court while self-described "dirty trickster" Matt Schlapp and future seven-count felon Roger Stone led an effort to fly hundreds of paid operatives to Florida to harass and intimidate Miami-Dade officials—the so-called "Brooks Brothers Riot"—in a bid to thwart their court-ordered work.
"I am concerned that the Florida Supreme Court transgressed the lines of authority drawn by Article II of the federal Constitution in substantially changing the state Legislature's statutory scheme for the appointment of presidential electors," O'Connor wrote.
"The Florida Supreme Court provided no uniform, statewide method for identifying and separating the undervotes," she noted, a reference to instances when voting machines could not read ballots.
\u201cBefore there was 2020 there was 2000 ....\n\nhttps://t.co/8gHDBXXdgK\u201d— Jocelyn Benson (@Jocelyn Benson) 1683072858
"Accordingly, there was no guarantee that those ballots deemed undervotes had not been previously tabulated," O'Connor asserted. "More importantly, the court failed to provide any standard more specific than the 'intent of the voter' standard to govern this statewide undervote recount. Therefore, each individual county was left to devise its own standards."
O'Connor noted that the Florida Legislature "has created a detailed, if not perfectly crafted statutory scheme that provides for the appointment of presidential electors by direct election," and that "the Legislature has designated the secretary of state as the 'chief election officer.'"
Florida's secretary of state at the time, Katherine Harris, was not only a Republican, she also co-chaired Bush's campaign in the state. On November 26, 2000 Harris declared Bush the winner in Florida by 537 votes, even though there were counties still tallying ballots.
Ignoring this obvious conflict of interest, O'Connor said the Florida Supreme Court "disregarded the secretary of state's delegated duty to exercise her discretion to determine whether to accept the state's late returns" and whether a manual recount requested by Gore was warranted.
Gore had asked for recounts in four heavily Democratic counties amid drama over dimpled, pregnant, and hanging chads; butterfly and caterpillar ballots; write-in votes; overcounts; undercounts; and a bewildering barrage of strange new terms. Some political commentators have argued that Gore's failure to request a statewide manual recount may have been a fatal miscalculation.
\u201cA reminder that the Republicans successfully stole a presidential election 23 years ago...and their hackish Justices on the Supreme Court played a key role in their doing so. https://t.co/2qkSr2svmt\u201d— @Ben_Alpers@mastodon.online \ud83d\uddfd (@@Ben_Alpers@mastodon.online \ud83d\uddfd) 1683070110
The day after O'Connor circulated her memo, Justice Anthony Kennedy, another Reagan appointee and frequent swing vote, wrote to right-wing Chief Justice William Rehnquist endorsing her "very sound approach."
Rehnquist—who was appointed by Republican former President Richard Nixon—was a proponent of what is now called the independent state legislature theory (ISLT), the fringe right-wing notion that state lawmakers alone can regulate federal elections. Hard-right Justices Antonin Scalia and Clarence Thomas, two of the five votes for Bush, also embraced the dubious theory.
Prominent purveyors of former President Donald Trump's "Big Lie" that the 2020 presidential election was "stolen" have cited ISLT when pushing state lawmakers to help overturn President Joe Biden's Electoral College victory. Thomas' wife Ginni Thomas—who in 2000 solicited resumes for positions in the presumptive Bush administration before her husband cast his decisive vote in Bush v. Gore—unsuccessfully pressed Arizona state lawmakers to invoke ISLT in service of Trump's ill-fated effort to reverse his 2020 loss.
Notably, Bush's legal team in Bush v. Gore included current right-wing U.S. Supreme Court Justices John Roberts, Brett Kavanaugh, and Amy Coney Barrett. Moore v. Harper, a North Carolina voting rights case currently before the court, could decide the legal validity of ISLT.
\u201cOne member of George W. Bush's legal team was especially enthusiastic about the "independent state legislature" theory: Brett Kavanaugh. \n\nHere he is endorsing it in 2000. \n\nNow Kavanaugh gets a chance to write it into law. Talk about a long game. https://t.co/VlnfRdeCy6\u201d— Mark Joseph Stern (@Mark Joseph Stern) 1670424929
On December 12, 2000 the justices ruled in a 7-2 per curiam opinion that Florida's court-ordered recount must be stopped on equal protection grounds, and 5-4 that there was no other way to recount all of the contested votes in a timely manner. Rehnquist, Kennedy, O'Connor, Scalia, and Thomas voted in favor of Bush, while Justices Ruth Bader Ginsburg, Stephen Breyer, David Souter, and Stevens dissented.
In his stirring dissent, Stevens presciently noted that "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 judges as an impartial guardian of the rule of law."
Four out of the five justices who sided with Bush were accused of conflicts of interest: Rehnquist and O'Connor were septuagenarians who had stated their desire to retire during a Republican presidency—the latter reportedly exclaimed "this is terrible" in response to a TV news report showing Gore leading on election night; Thomas' wife was headhunting personnel for a potential Bush administration; and two of Scalia's sons worked for law firms representing Bush. None of the four justices recused themselves from Bush v. Gore. Bush later nominated Eugene Scalia for U.S. labor solicitor.
\u201cWhen I was a kid I really really looked up to the Supreme Court justices. We all learned how they get lifetime appointments to make sure they can\u2019t be influenced etc\u2026with Thomas, Alito, O\u2019Connor, Kavanaugh, and all\u2026I definitely don\u2019t feel the same way.\n\nhttps://t.co/6YZYqMFvAM\u201d— Yuh-Line Niou (@Yuh-Line Niou) 1683092690
O'Connor—who is now 93 years old—would come to have regrets, which she expressed years after her 2006 retirement. In 2013, she told the Chicago Tribune editorial board that Bush v. Gore "stirred up the public" and "gave the court a less-than-perfect reputation."
"It took the case and decided it at a time when it was still a big election issue," she said. "Maybe the court should have said, 'We're not going to take it, goodbye.'"
There were other reasons why some commentators refer to the 2000 presidential election as "stolen." Chiefly, massive voter disenfranchisement resulting from racist policies of Republican Florida Gov. Jeb Bush—the GOP candidate's brother—played what one federal civil rights official called an "outcome-determinative" role in the state's, and therefore the nation's, results.
Scalia infamously dismissed his friend Bader Ginsburg's concerns over Black disenfranchisement as the "Al Sharpton Footnote," and habitually advised Americans disturbed by Bush v. Gore to "get over it."
\u201cThe article included extensive evidence that Ginsburg was right to be concerned. When Scalia died 2 years later, his obnoxious & dismissive Sharpton remark - which said a great deal about who he was - didn\u2019t make it into the many think pieces about his tenure on the Court.\u201d— Sherrilyn Ifill (@Sherrilyn Ifill) 1683083845
However, it was ultimately the Supreme Court's cessation of the unfinished Florida recounts, and Gore's subsequent meek acquiescence "for the sake of our unity as a people and the strength of our democracy," that handed victory to Bush.
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'Utterly Disqualifying': Pete Buttigieg Panned for Praising Supreme Court Justice Anthony Kennedy
Critics pointed out that the retired justice "voted to uphold Trump's Muslim ban, voted for the Janus decision gutting labor unions, and voted to uphold voter suppression in Husted."
Oct 24, 2019
Progressives on Thursday piled on Pete Buttigieg--the mayor of South Bend, Indiana and a 2020 Democratic presidential candidate--for praising former U.S. Supreme Court Justice Anthony Kennedy in an interview with Cosmopolitan.
While explaining possible reforms "to stop the descent of the Supreme Court into becoming yet another political body," Buttigieg said that "one of them would be to have 15 members, but 5 of them can only be seated if the other 10 unanimously agree. The idea here is you get more justices who think for themselves. Justices like Justice Kennedy."
Rolling Stone senior writer Jamil Smith called Buttigieg's remarks "utterly disqualifying for me as a primary voter."
\u201cIn this @Cosmopolitan interview, @PeteButtigieg speaks favorably of the judgment of former Supreme Court Justice Anthony Kennedy when discussing the potential for his own court picks as president. That is utterly disqualifying for me as a primary voter. https://t.co/HmH3wnewXf\u201d— Jamil Smith \u062c\u0645\u064a\u0644 \u0643\u0631\u064a\u0645 (@Jamil Smith \u062c\u0645\u064a\u0644 \u0643\u0631\u064a\u0645) 1571940014
Kennedy retired from the Supreme Court last year, paving the way for President Donald Trump to nominate and the Republican-held Senate to confirm Brett Kavanaugh. Critics of Kennedy swiftly called attention to his record of judicial rulings.
"Pete Buttigieg's model Supreme Court justice is a guy who was appointed by Reagan, consistently worked to gut workers' rights and voting rights, and resigned to allow Donald Trump to appoint Kavanaugh," tweetedThe Nation's national affairs correspondent Jeet Heer.
Brian Tashman, a researcher at the ACLU, pointed out that Kennedy "voted to uphold Trump's Muslim ban, voted for the Janus decision gutting labor unions, and voted to uphold voter suppression in Husted."
\u201cPete Buttigieg says he wants more Supreme Court justices who are like Justice Kennedy.\n\nThe same Justice Kennedy who voted to uphold Trump's Muslim ban, voted for the Janus decision gutting labor unions, and voted to uphold voter suppression in Husted\u201d— Brian Tashman (@Brian Tashman) 1571934337
Responding to Tashman on Twitter Thursday, Buttigieg spokesperson Sean Savett wrote that "this tweet ignores his comments in the interview, in which he said his appointments would 'definitely be people who share my values,' and how depoliticizing SCOTUS is personal to him because his marriage exists by a single vote on the court."
Sen. Bernie Sanders (I-Vt.), another White House hopeful, also weighed in. Linking to Tashman's summary of Kennedy's record, Sanders tweeted, "Interesting, I'd like more justices like Ruth Bader Ginsburg and Sonia Sotomayor."
This post has been updated with comment from Buttigieg spokesperson Sean Savett.
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Four Ways to Expand the U.S. Supreme Court
Congressional action can address the problem
Jun 07, 2019
The second point ... about the illusion of the Court's legitimacy, is just as important as the first. If the Court were ever widely seen as acting outside the bounds of its mandate, or worse, seen as a partisan, captured organ of a powerful and dangerous political minority (which it certainly is), all of its decisions would be rejected by the people at large, and more importantly, the nation would plunged into a constitutional crisis of monumental proportions. We are in that crisis now, but just at the start of it.--Yours truly (from "Anthony Kennedy and Our Delayed Constitutional Crisis")
In the same way that countries like Libya are "failed states," the U.S. Supreme Court is a failed institution. Always partisan, either mainly or partly, its authority--meaning the people's acceptance of the validity of its rulings--rests on a kind of momentum, a belief that despite its long history of missteps (Dred Scott and Plessy v. Ferguson, to name just two) the Court can be trusted, in time, to self-correct.
That the Supreme Court was failing its constitutional role had been clear to close observers since the 1976 decision in Buckley v. Valeo, which ruled that election spending was "speech." Yet despite the numerous bad decisions that followed, the momentum of belief--and the illusion that Anthony Kennedy represented a "swing vote" on an otherwise ideologically balanced bench--has kept most Americans, if not blind, then unnoticing of the modern Court's deadly defects.
The first real crack in the dam of faith occurred with the Bush v. Gore decision, in which a nakedly partisan majority installed a losing presidential candidate in the Oval Office simply because it could, using only its authority, and not the law, as justification. Later decisions like Citizens United put proof to many people's suspicions that the Court was an operative in a war for political control and no longer a place where law, even bad law, had a place.
The recent, manipulated addition of the clearly unfit Brett Kavanaugh, a partisan right-wing warrior, to the bench confirmed those suspicions in spades. He even appeared to threaten revenge when he reached the Court for the way he and his confirmation were treated.
What will happen when, not just some, but most Americans consider the Supreme Court illegitimate, when the Court reveals itself to be fully what it is--a captured body serving a powerful, very small political minority (the very rich, the pathologically "moral") to the exclusion of the whole of the rest of the country and its needs?
We're poised on the cusp of that revelation, of the Court's self-outing in full view of the public. With cases like Roe v. Wade, to name just one, coming before it and a bench with no supposed "swing vote," the country is about to witness from the John Roberts judiciary what it has already witnessed from the Mitch McConnell Senate--what it has the power to do, it will do, simply because it can, however destructive the results to norms, precedent or established behavior.
We're about to witness Bush v. Gore on steroids--not a semi-forgivable, if monumentally wrong one-off, but a series of decisions that define a willful judicial oppression that will last through the next generation.
What can be done to prevent this oppression and the revolt that will surely follow? Is there a solution?
Expanding the Court: Four Proposals
Expanding the Supreme Court has often been offered as an answer, but the last attempted expansion--FDR's so-called court-packing scheme--still leaves a bad taste in the mouths of most Democratic politicians (even though it worked; see "The switch in time that saved nine").
Yet the composition of the Supreme Court has changed many times throughout our history, and the number of judges was deliberately and explicitly left to Congress, an obvious example of a constitutional check against the over-exercise of judicial power. Clearly, congressional action can address the problem.
But what should Congress do? Is "court packing" the only alternative?
In an excellent article published in the Harvard Law and Policy Review, Kurt Walters offers not just one, but four ways that Congress could restructure the Court. Each deserves attention and consideration:
The first and most straightforward approach to expanding the Court is adding two, four, or six new justices to the Court. This suggestion has been advanced by Professor Michael Klarman of Harvard Law School, among others. This expansion would serve to offset the tarnished confirmations of the most recent two Supreme Court nominees, although critics of this approach, including Senator Bernie Sanders, warn it could unleash a spiral of retaliatory moves by whichever party is in power.
The second option is to reconstitute the Supreme Court in the image of a federal court of appeals. This course of action would increase the number of justices to fifteen or a similar number. Panels of justices would be drawn from this larger group, with an option of en banc review. This plan would not only dislodge the Court's current reactionary majority, but the panel format also would allow a greater number of cases to be heard.
Third is the Supreme Court Lottery, a more aggressive version of the panel strategy. Daniel Epps and Ganesh Sitaraman have outlined this proposal in a forthcoming Yale Law Journal piece. All federal appellate court judges, roughly 180 in total, would become associate justices on the Supreme Court. Panels of nine justices would be randomly selected from this pool. Importantly, decisions on whether to grant certiorari on a given case would be made by panel members who would not know the ideological makeup of the panel that would hear the case. Thus, this plan would frustrate partisan maneuvering.
Fourth and finally is Epps and Sitaraman's idea for a "Balanced Bench." This proposal aims to counteract the effects of partisanship on the Court by explicitly recognizing and institutionalizing partisanship presence. The Court would have ten justices, with five seats allocated to each of the two major parties. Those ten justices would select sets of five additional justices at a time to serve a future, non-renewable one-year term. That selection would operate on a requirement of near-unanimity to ensure that this final set of five justices would be relatively even-handed. However, it is not certain how a Democratic president would fill a vacancy in a Republican seat that arose during her tenure, or how a Republican president would fill an analogous Democratic vacancy.
I'm partial to the second and third alternatives myself, with the added benefit that under the third proposal,"decisions on whether to grant certiorari on a given case would be made by panel members who would not know the ideological makeup of the panel that would hear the case." Implementing a proposal like that would certainly tip the scales of justice toward justice and away from partisan manipulation.
Will a future Democratic Congress be bold enough to offer any of these proposals? If the timid behavior of the present Democratic House is any indication, likely not--unless Congress is led to it, perhaps, by a bold and aggressive future Democratic president, someone truly on the people's side, for a change. Yet another reason to support the boldest progressive in the race, whoever he or she might be.
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