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Excerpt: Bush v. Gore marks high court's low point

  • Story Highlights
  • Bush v. Gore exposed court's biggest flaws, Jeffrey Toobin writes
  • Toobin commends Justice John Paul Stevens for an eloquent dissent
  • Justice David Souter almost resigned over the court's decision, Toobin says
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By Jeffrey Toobin
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All this week CNN.com is running excerpts from CNN senior legal analyst Jeffrey Toobin's new book, "The Nine: Inside the Secret World of the Supreme Court," published by Random House.

It had been at least 25 years since the nation turned its collective attention to the Supreme Court to resolve a question of such importance.

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Author Jeffrey Toobin is CNN's senior legal analyst.

In 1974, the justices had risen to the occasion when, in United States v. Nixon, they unanimously ordered the president to turn over the White House tapes and, in a larger sense, comply with the rule of law.

Here, in a moment of probably even greater significance, the court as an institution and the justices as individuals failed. Indeed, their performance on this case amounted to a catalog of their worst flaws as judges.

In one respect, though, the court received unfair criticism for Bush v. Gore -- from those who said the justices in the majority "stole the election" for George W. Bush. Rather, what the court did was remove any uncertainty about the outcome.

It is possible that if the court had ruled fairly -- or, better yet, not taken the case at all -- Al Gore would have won the election. A recount might have led to a Gore victory in Florida. It is also entirely possible that, had the court acted properly and left the resolution of the election to the Florida courts, Bush would have won anyway.

The recount of the 60,000 undervotes might have resulted in Bush's preserving or expanding his lead. The Florida Legislature, which was controlled by Republicans, might have stepped in and awarded the state's electoral votes to Bush. And if the dispute had wound up in the House of Representatives, which has the constitutional duty to resolve controversies involving the Electoral College, Bush might have won there, too.

The tragedy of the court's performance in the election of 2000 was not that it led to Bush's victory but the inept and unsavory manner with which the justices exercised their power.

There was only one bright spot in this dismal panorama. John Paul Stevens' dignified, clearheaded and insistent eloquence honored the court. Alone among the justices, Stevens was consistent and logical and constitutionally sound in his thinking. From his home in Fort Lauderdale, he composed a peroration that serves as the best epitaph for this sorry chapter in the court's history:

"The [opinion] by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. 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 pellucidly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

(At the last moment, one of Stevens' clerks prevailed on him, just this once, to give up his favorite word -- pellucidly -- and substitute the more familiar perfectly, which is how the famous sentence now reads.)

With one exception, the justices tried to put Bush v. Gore behind them and resume business as usual. Three weeks later, Justices Antonin Scalia and Ruth Bader Ginsburg followed their custom of welcoming the New Year with each other's families.

Stephen Breyer, characteristically, made a systematic effort to take many of the disappointed liberal law clerks to lunch. In restaurants, often at embarrassingly high decibels, Breyer urged the young lawyers to maintain their faith in the court and believe that their views might someday return to favor.

Sandra Day O'Connor tried to avoid discussing the case. Anthony Kennedy pretended the whole matter was no big deal.

David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn't just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal.

Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn't. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues' actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the court was never the same. There were times when David Souter thought of Bush v. Gore and wept. E-mail to a friend E-mail to a friend

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