The October 2004 Vanity Fair has hit the newsstands, and it offers an insider’s view of what happened in Bush v. Gore. (It’s not online, unfortunately; yes, I actually had to plunk down $4.50 for a very glossy paper copy.) To be more precise, the article offers the view of a group of the law clerks who worked on the case — a group described in the article as “most” of the clerks who worked for the four Justices in the dissent and the “occasional” clerk who worked for one of the Justices in the majority.
The article acknowledges that the clerks’ story is rather skewed, but justifies publishing it on the ground that it’s better than nothing: “[I]f this account may at times be lopsided, partisan, speculative, and incomplete,” the article states, “it’s by far the best and most informative we have.” Like most law clerk narratives, the article both stresses the important role of law clerks and includes considerable speculation as to the improper motives of the Justices who voted the other way.
I haven’t followed the debates over Bush v. Gore very closely — I think the case was wrongly decided, but it’s far from my area of expertise — but my quick initial read of the article suggests that these are the most important new details:
(1) The initial vote to take the first election case, Bush v. Palm Beach County Canvassing Board, was 5-4, with the 5 Justices who later made up the Bush v. Gore majority all voting to grant the petition for certiorari.
(2) The 9-0 per curiam opinion in the first election case was a compromise opinion authored by Chief Justice Rehnquist. The compromise was reached after neither side could form a majority for either letting the initial Florida Supreme Court opinion stand or overturning it outright.
(3) At the Justices’ conference following the oral argument in Bush v. Gore, Justice Kennedy initially voted to allow the recount to continue, joining Justices Souter, Ginsburg, Breyer, and Stevens to form a majority to affirm.
(4) Justice Kennedy changed his vote soon after the Justices’ conference, and was the eventual author of the per curiam majority opinion in Bush v. Gore.
Then there is the question of law clerk confidentiality. The clerks who spoke to Vanity Fair apparently viewed their duty of confidentiality to the Court as subject to waiver when in their judgment the Court has gone badly astray:
To the inevitable charges that they broke their vow of confidentiality, the clerks [who spoke to Vaniy Fair] 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.
Hmmm. Sounds pretty flimsy to me, for obvious reasons.