Mid-to-Late November 2000: Supreme Court Justice, Clerks Find Idea of Deciding Presidential Election in Court ‘Inconceivable’

Shortly after the presidential vote that resulted in an as-yet-unresolved flurry of recounts and criticisms (see 6:36 p.m. November 15, 2000 and 9:14 p.m., November 15, 2000), two law clerks at the US Supreme Court laugh about the unlikely possibility that the election will end up being resolved in the Court. Could it happen that way? they wonder. And if so, would the Court split 5-4 along ideological lines, with the conservative majority giving Governor George W. Bush (R-TX) the presidency? The idea is preposterous, they decide, no matter what some of their friends and relatives are predicting. Even the most conservative of Court justices, they say, are pragmatic and mindful of the law. Moreover, they tell one another, the Court has always steered clear of sticky political conflicts. And the conservative justices are the most mindful of states’ rights and most devoted to the concept of the Constitution’s “original intent,” including the Founders’ insistance that Congress, not the judiciary, should be the body to resolve close elections. One clerk later tells reporters: “It was just inconceivable to us that the Court would want to lose its credibility in such a patently political way. That would be the end of the Court.” As November moves closer to December and the election fracas continues unresolved, a law professor predicts that Bush’s chances before the Court are “between slim and none, and a lot closer to none.” Over Thanksgiving, the justices and clerks leave Washington for vacation, with only a skeletal staff of a few clerks remaining in town in case of emergencies. Justice Stephen Breyer says over the holiday that there is no way the Court would ever get involved in the election. [Vanity Fair, 10/2004]