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Conflicts of interest in Bush v. Gore: Did some justices vote illegally?

Georgetown Journal of Legal Ethics, The, Spring 2003 by Neumann, Richard K Jr

On December 9, 2000, the United States Supreme Court stayed the presidential election litigation in the Florida courts and set oral argument for December 11.1 On the morning of December 12-one day after oral argument and half a day before the Supreme Court announced its decision in Bush v. Gore2-the Wall Street Journal published a front-page story that included the following:

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Chief Justice William Rehnquist, 76 years old, and Justice Sandra Day O'Connor, 70, both lifelong Republicans, have at times privately talked about retiring and would prefer that a Republican appoint their successors. . . . Justice O'Connor, a cancer survivor, has privately let it be known that, after 20 years on the high court, she wants to retire to her home state of Arizona . . . . At an Election Night party at the Washington, D.C., home of Mary Ann Stoessel, widow of former Ambassador Walter Stoessel, the justice's husband, John O'Connor, mentioned to others her desire to step down, according to three witnesses. But Mr. O'Connor said his wife would be reluctant to retire if a Democrat were in the White House and would choose her replacement. Justice O'Connor declined to comment.3

In a story published the following day, Christopher Hitchens, the United States correspondent for the Evening Standard of London, wrote that "O'Connor . . . has allegedly told her friends and family that she wishes to retire from the Court but won't do so if there is to be a Democratic president to nominate her replacement."4 Helen Thomas, a nationally syndicated columnist, wrote that "[t]he story going around [Washington] is that a very upset Justice Sandra Day O'Connor walked out of a dinner party on election night when she heard the first mistaken broadcast that Vice President A Gore had won. The ailing O'Connor apparently wants to retire, but not while a Democrat is in the White House and could pick her successor."5 Various parts of this story were repeated in a number of publications.6

The following week, Newsweek published a more detailed account:

[A]t an election-night party on Nov. 7, surrounded for the most part by friends and familiar acquaintances, [Justice O'Connor] let her guard drop for a moment when she heard the first critical returns shortly before 8 p.m. Sitting in her hostess's den, staring at a small black-and-white television set, she visibly started when CBS anchor Dan Rather called Florida for Al Gore. "This is terrible," she exclaimed. She explained to another partygoer that Gore's reported victory in Florida meant that the election was "over," since Gore had already carried two other swing states, Michigan and Illinois.

Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst. John O'Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they'd have to wait another four years. O'Connor, the former Republican majority leader of the Arizona State Senate and a 1981 Ronald Reagan appointee, did not want a Democrat to name her successor. Two witnesses described this extraordinary scene to Newsweek. Responding through a spokesman at the high court, O'Connor had no comment.7

This, too, was repeated in a large number of publications, both in the United States8 and abroad.9

According to an article in USA Today five weeks after the Court decided Bush v. Gore, "[p]eople close to the justices confirmed much of the story, which was first reported in the Wall Street Journal and Newsweek magazine."10 At that point, a defense tentatively circulated and then disappeared. USA Today added that "some people suggest that O'Connor was actually upset that the election was being called for Gore while the West Coast polls were still open."11 This theory was not again reported in the mainstream media, perhaps because it cannot be reconciled with the comments attributed to Justice O'Connor in the Newsweek article or to the comments attributed in many of the articles to John O'Connor, presumably the person most qualified to attest to Justice O'Connor's intentions.

Later, in his book on the court battles that lead to Bush v. Gore, Jeffrey Toobin repeated the election night story and included a direct quote from John O'Connor:

Justice O'Connor said "This is terrible," and she hastened away from the television . . . . Her husband, John, explained her reaction to the partygoers, saying, "She's very disappointed because she was hoping to retire"-that is, with a Republican president to appoint her successor.12

Toobin also described another incident, which occurred while the Supreme Court was adjudicating Bush v. Gore:

On . . . the day of the Supreme Court's first opinion on the election, O'Connor and her husband had attended a party for about thirty people at the home of a wealthy couple named Lee and Julie Folger. When the subject of the election controversy came up, Justice O'Connor was livid. "You just don't know what those Gore people have been doing," she said. "They went into a nursing home and registered people that they shouldn't have. It was outrageous." It was unclear where the justice had picked up this unproved accusation, which had circulated only in the more eccentric right-wing outlets, but O'Connor recounted the story with fervor.13

Conflicts of interest in Bush v. Gore: Did some justices vote illegally?

Georgetown Journal of Legal Ethics, The, Spring 2003 by Neumann, Richard K Jr

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