I got a message last week that said: “Antonin Scalia is now following you on Twitter!” Despite our many years of interaction, I suspected this Scalia wasn’t the real one. I know he has an iPad and is pretty digital for a 75-year-old who works in the cloister of the Marble Palace. But he’s no Justice Stephen Breyer, who has a Twitter account –although Breyer does call it the “tweeter thing”.

I confirmed with the Court that the Twitter-joining “Antonin Scalia” is not the opinion-writing one. And I couldn’t help but be reminded of other fake Scalias that have come my way over the years. There was the fish called Scalia that I learned about during research for a 2002 newspaper profile. A Louisiana State University student had named a pet fish after Scalia, but not with his well-known nickname “Nino.” Rather, the student named him “Justice Scalia” and went on to say that “Justice Scalia ate all the others” in the tank.

I discovered another pinching of the Scalia name when I was doing research on American Original and my father, a lawyer who played the ponies, saw a horse named Scalia in the Racing Form. My father observed that the sire was named Holy Bull and believed there must be a connection. When I asked Justice Scalia about it, he said he had never heard of the horse and doubted it had anything to do with him. Out of curiosity and as a nod to my late father, I followed up on that horse as I was finishing the book. I found the Lexington, Kentucky, breeder, who told me that the horse’s name was indeed a tribute to the justice. The breeder, it turned out, was especially pleased with result in Bush v. Gore. I don’t think this new “Antonin Scalia,” who’s been firing off some of his own tweets, is the same guy.

Bush v. Gore: Still a Trip

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When I drive directly from my northwest Washington, D.C., home to the Supreme Court, without stopping at the office, I take North Capitol Street south toward the Hill. And when I’m just about a half mile from my turn off of North Capitol, I hit the spot where I first heard on the radio that fateful Saturday, December 9, that the Court had halted the Florida recounts in the presidential election of 2000.

After ten years, I still cannot pass that spot without recalling the shock of the Court’s order. I had been driving in to get the latest filings and never suspected intervention was imminent. The Court’s conservative-controlled 5-4 order stopped Florida ballot recounts – a day after the Florida supreme court had ordered the counting resumed — and set oral arguments in George W. Bush’s appeal. The Court’s order also set the stage for what happened three days later: a 5-4 ruling that fully ended the litigation over the state’s decisive presidential electoral votes and let Bush take the White House over Al Gore. 

Irrespective of the legal merits (and I lay them out in chapters of both biographies), I don’t think I’ll ever – as Justice Antonin Scalia regularly admonishes – “get over it.”

In recent days, I have been even more aware of how much the case remains with us. Justice Stephen Breyer told me Tuesday that in his travels audiences regularly ask him about the ruling, and half the people still think it was wrong. Breyer, who dissented, uses Bush v. Gore in his latest book, Making Our Democracy Work, however, as a positive example of how  people rightly follow Court rulings even then they don’t like them.

I am asked about the case all the time. At a Smithsonian panel on Court trends in November, one of the first audience questions was from a man still angry about it. Also on the panel were acting U.S. solicitor general Neal Katyal, who had worked for Gore, and former U.S. solicitor general Paul Clement, who had worked for Bush, and they jumped in to air the two sides.

There’s something about Bush v. Gore that’s not going away. At least for those of us connected to the Court. New Yorker writer Jeffrey Toobin does observe in an essay this week about the anniversary of the case that former President Bush in his memoir, Decision Points, devotes less than a page to it.

A Call From Renton, Wash., About Bush v. Gore

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It is a rare book signing or media appearance related to American Original that does not bring a question about the Court’s 2000 decision in Bush v. Gore. Yesterday when I was on the Diane Rehm Show, based in Washington, D.C., and broadcast on NPR, a woman named Janice from Renton, Washington, called in to say, “I resent Justice Scalia saying ‘Get over it,’ when we’re really talking about a coup d’etat by the judiciary.” She was referring, of course, to the 5-4 decision stopping the Florida recounts in the presidential election and ensuring George W. Bush’s victory over Al Gore. Half the country still seems angered by the decision handed down nine years ago this month.

Comments such as that from Janice highlight Justice Scalia’s singular role in the dispute, on which I elaborate below. Her remark also prompted me this time to check on how the decision has been faring in the case law. To my surprise, the decision that the justices wanted limited to the Florida case has now been cited in more than 200 federal and state court rulings. So as it lingers in the public psyche, Bush v. Gore remains a reference in the law, not just politics.

Scalia’s leading role came before the Supreme Court decided the merits of the dispute between then-Texas Gov. George W. Bush and then-Vice President Al Gore, when the justices by a 5-4 vote first shut down all recounts of Florida ballots. In that Dec. 9 order (three days before the Dec. 12 decision favoring Bush), Justice Scalia took it upon himself to defend the majority’s action. He wrote in a statement (signed by none of his colleagues) that letting the recounts continue would threaten the “legitimacy” of Bush’s election. “Count first, and rule on legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” Scalia continued, “the counting of votes that are of questionable legality does in my view threaten irreparable harm to [Governor Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.” As I write in American Original, that was a surprising and dubious assessment of the situation. He was suggesting that if Bush were to win the presidency through a Court judgment that the recount was unfair, it would be better to have stopped the recount outright and avoided any tally that ended up favoring Gore. When challenged on the case during his own appearances on the road, Justice Scalia tells audiences, “Get over it.” And he complained in one our interviews, “I take most of the heat for that case,” suggesting he thought that simply was not fair. Janice would not agree.

 The recent comments from her and others – nearly a year after George W. Bush finished his two terms — led me to check on how Bush v. Gore was doing in the case law. When the five-justice majority ruled that the Florida standards for counting ballots varied too widely and failed to meet the constitutional equality guarantee, it said “our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Law professors teach Bush v. Gore as one-of-a-kind decision, and the justices certainly have turned away from it. The high Court has not relied on the holding of Bush v. Gore for anything since December 2000. Yet I discovered that it has been cited in a couple hundred lower court rulings. It has endured — not with as much force as the political anger and likely not as the five-justice majority wanted it to endure. The 2000 ruling has enhanced the grounds for equal-protections challenges to unreliable voting procedures. As the U.S. Court of Appeals for the 6th Circuit wrote in a case last year, League of Women Voters of Ohio v. Brunner, “Although Bush [v.Gore] was necessarily ‘limited to the present circumstances,’ district courts have found its analysis applicable in challenges to voting systems.” The 6th Circuit relied on the case as it allowed the League of Women Voters and several individuals in Ohio to bring an equal-protection challenge to balloting practices during the 2004 Ohio presidential election. Among the claims, in the case recently settled, were that some voters had to wait up to 12 hours to cast a ballot and many disabled voters were turned away from the polls.

People Are Asking:

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From Miami to Milwaukee, one of the most frequently asked questions I’ve fielded in recent weeks relates to how Scalia’s Catholicism influences his rulings. This is a touchy area but clearly one that fascinates people. The question is increasingly asked, too, because there are now six Catholic justices on the Supreme Court. Along with Scalia, they are Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor.

Yet more than any of them, Scalia, who was raised in a strict Catholic home, then attended a Jesuit high school and the Jesuit Georgetown University, is identified as a Catholic justice. He has spoken publicly about the importance of fidelity to the Church’s traditional values, such as saying the Rosary and observance of all holy days. How his religion affects his judicial views emerges mostly in the debate over abortion rights, a topic about which he is passionate as he is about religion. Scalia fiercely rejects the notion that the Constitution contains a right to abortion. Yet when asked about the connection between his religion and his rulings, he says there is none. He says he is only reading “texts,” not making value judgments. In the book, I let him have his say, but I also include skepticism from critics who contend his passion for his religion cannot help but affect his rulings.

It is true that irrespective of Scalia’s Catholicism, his conservative approach to the Constitution would likely dictate his opposition to abortion rights. Yet it is also true, as Scalia has told me, that one of the lasting lessons he has carried from his years of Catholic education is, “Do not … separate your religious life from your intellectual life. They’re not separate.”

Why are they friends? Another question I have heard a lot lately, including when I appeared at Washington’s independent bookstore Politics and Prose centers on the friendship between Justices Scalia and Ginsburg, the court’s prominent feminist. Much goes back to their roots as New Yorkers and in academia. She grew up in Brooklyn, he in Queens. They both spent years teaching in law schools and, as justices, now take an intellectual approach to the law. When they served together on the Washington, D.C., federal appeals court, before their respective appointments to the high Court, they used to run drafts of opinions by each other to test everything from the legal reasoning to points of grammar. Justice Ginsburg says of Scalia: “I love him. But sometimes I’d like to strangle him.”

Finally, Bush v. Gore:  As I discovered in Philadelphia, where I spoke at the National Constitution Center and also fielded questions for WHYY’s “Radio Times” show, many people still care passionately about the justices’ 5-4 decision in 2000 helping George W. Bush win the White House over then Vice President Al Gore. Scalia, of course, continues to say “Get over it,” but —  plainly — people are not. It does not surprise me that the controversy lingers. Scalia was the only justice who wrote a statement explaining why the majority felt justified in shutting down the Florida recounts at a crucial moment. On lingering controversies, however, I have to admit that I was thrown when someone at a Milwaukee speech asked me whether Scalia believed Anita Hill’s accusations against Clarence Thomas in 1991. I thought that one was history.