Kennedy, O'Connor decide election for Bush

An AP News Analysis

Posted: Thursday, December 14, 2000

WASHINGTON -- Supreme Court justices Anthony M. Kennedy and Sandra Day O'Connor effectively decided the outcome of Bush v. Gore and with it probably the election, but their names do not appear atop the majority opinion -- nor anywhere else in the 65 pages of overlapping opinions and dissents.

''Kennedy and O'Connor decided it, but they are hiding. It's a stealth 5-4 opinion,'' said Yale law professor Jack Balkin.

Hiding in plain sight, perhaps.

''We know exactly what their positions are,'' said University of Virginia constitutional scholar A.E. Dick Howard. ''By the process of subtraction, it's pretty clear.''

The 5-4 decision ending Florida ballot recounts and all but sealing the election for George W. Bush was, as many court watchers had predicted, led by the court's three-member conservative wing with the crucial addition of swing voters Kennedy and O'Connor.

The majority decision was unsigned, but court scholars deduce it was written by Kennedy, O'Connor or both of them.

The court's staunch conservatives, Chief Justice William Rehnquist and justices Antonin Scalia and Clarence Thomas, signed a separate opinion that would have gone further than the majority in reversing the Florida Supreme Court's election ruling.

The four dissenters, Justices John Paul Stevens, David H. Souter, Stephen G. Breyer and Ruth Bader Ginsburg, signed opinions that would have given Florida more time to try to count ballots, or that said the high court should not have gotten involved at all.

That leaves Kennedy and O'Connor in the middle, as usual. ''It's their classic position on the court,'' Howard said.

The majority contained the same cast of justices, all nominated to the court by Republican presidents, that voted last Saturday to stop the hand recounts that were Democrat Al Gore's hope of overtaking Bush's slim lead in Florida.

In that preliminary vote, Kennedy and O'Connor went on record as thinking Bush had the stronger argument, although they could have changed their minds when they heard more fully from both sides.

''They end up being the glue of the opinion,'' moderating the conservative camp and mollifying the moderate-to-liberal camp, said Pepperdine University constitutional scholar Douglas Kmiec.

In recent years, O'Connor and Kennedy have sided with the court's three most conservative jurists in a series of 5-4 rulings championing state power over that of the federal government.

In the most recent court term, 20 of 73 signed decisions were reached by 5-4 votes, the highest percentage of one-vote outcomes in more than a decade, with O'Connor and Kennedy joining the Rehnquist bloc in 13 of those votes.

The dissenters Tuesday night included two justices nominated by Republican presidents and two named by President Clinton.

Some scholars said Kennedy's and O'Connor's anonymity was not the only example of a place where the justices could have shown more courage.

For starters, the court issued the opinion in writing, rather than from the bench, and did so with barely more than two hours left before a deadline for Florida to name a slate of electors immune to congressional challenge.

The majority cited the deadline as the reason to rule out more recounts, without acknowledging that it had contributed to the time crunch and had left the Florida court no real options, said New York University law professor Barry Friedman.

''I think that was a trifle mean-spirited, to lay it on the Florida court,'' Friedman said.

Yale's Balkin said the entire decision was ''weak-kneed'' where it might have been bold in either direction -- either ordering more recounts or taking a definitive constitutional stance against them.

''This is just a bad way to end it,'' Balkin said. ''This is not a situation in which the Supreme Court comes in and does something heroic. 'Anticlimax' is the right word.''

The language of the majority opinion tries to smooth the sharp edges delineating the court's factions, scholars from different ideological perspectives agreed.

The opinion called attention to the limited areas of agreement among seven justices, including two of the dissenters, and ordered the case sent back to a Florida court.

''That is a smoke screen to talk about the deference to state law and state courts. This is basically five ideological conservatives picking a conservative president,'' said Jerome Barron, law professor and former dean at Georgetown University Law School.

Kmiec said he rejects that kind of interpretation.

''Not only do I believe they decided this issue on law, not politics, ... but I think the composition of this court at the moment reflects a very nice and workable balance of opinion,'' Kmiec said. ''It is for that reason this was the perfect court to be given this difficult assignment.''

Anne Gearan covers the Supreme Court for The Associated Press.

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