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

In November 1999, a year before the 2000 election, Fortune magazine published the following:

. . . Democratic and Republican partisans . . . have been shouting about the need to elect a President of their own because three justices are known to be considering retirement: John Paul Stevens, 79; Chief Justice William Rehnquist, 75; and Sandra Day O'Connor, 69, in that order. . . .

But the surprising chatter in Republican circles is that a fifth justice might bolt: Antonin Scalia, 63. On the court since 1986, Scalia has told associates that he sometimes feels underchallenged by the light workload. He also has grumped about having to write so many dissenting opinions; the court has only three unswerving conservatives, Scalia, Rehnquist, and Clarence Thomas. Friends of Scalia describe him as frustrated and say he has mused aloud that press accounts about which justices might retire after the next President takes office have been wrong to omit him. Scalia wouldn't retire before Bill Clinton left office for fear of being replaced by a liberal. But if Governor George W. Bush or some other conservative Republican won, Scalia could give up his seat. He declines to comment.252

In March 2000, Washingtonian magazine published the following:

When Supreme Court Justices think about leaving, conservative ones usually wail until there is a Republican president. But friends of Justice Antonin Scalia say he's thinking the opposite way. Scalia has been in a funk since failing to persuade his fellow justices to overturn Roe v. Wade-and thus allow states to set their own laws on abortion.

The only fellow justice he now can rely on is Clarence Thomas; even fellow conservatives William Rehnquist and Anthony Kennedy have disappointed Scalia.

With Sandra Day O'Connor and Ruth Bader Ginsburg having been ill and Rehnquist and John Paul Stevens ready to retire, Scalia has decided the November election is make-or-break time. If the Democrats win the White House, Scalia will resign. A Gore presidency would eliminate his chance of becoming Chief Justice and ensure that his jurisprudence will never be anything more than a footnote.

If a Republican wins, Scalia would stay on. There's a good chance a new Republican president would name Scalia or Thomas as Chief Justice. Scalia would love being Chief Justice, especially on a court rid of O'Connor and Stevens.

Ideology and history aren't the only factors. Also weighing on Scalia is money. Supreme Court justices earn $ 167,900 a year. Davis Polk & Wardwell, a New York City law firm, is paying first-year associates-youngsters right out of law school-$ 150,000 to $ 160,000 a year. Graduates with experience as Supreme Court clerks usually make $ 175,000 and commandeer a $ 50,000 signing bonus as well. This means that one year after they leave his chambers. Scalia's clerks will be earning far more than the father of nine-a disparity that is increasingly aggravating not only to Scalia but also to the other justices.253

The essence of this article was repeated in several other periodicals,254 and the National Review also reported that Justice Scalia was considering retirement "owing to his frustration with the Court."235