The Supreme Court Gaslights Its Way to the End of Roe

There are many reasons for dismay over the Supreme Court argument in the Mississippi abortion case, but it was the nonstop gaslighting that really got to me.

First there was Justice Clarence Thomas, pretending by his questions actually to be interested in how the Constitution might be interpreted to provide for the right to abortion, a right he has denounced and schemed to overturn since professing to the Senate Judiciary Committee 30 years ago that he never even thought about the matter.

Then there was Chief Justice John Roberts, mischaracterizing an internal memo that Justice Harry Blackmun wrote to his colleagues as the Roe v. Wade majority was discussing how best to structure the opinion Justice Blackmun was working on. The chief justice was trying to delegitimize the place of fetal viability in the court’s abortion jurisprudence, where for nearly 50 years, viability has been the unbreached firewall protecting the right of a woman to choose to terminate a pregnancy.

“It’s an unfortunate source, but it’s there,” he said, referring to Justice Blackmun’s papers, on file and open to the public at the Library of Congress. “In his papers, Justice Blackmun said that the viability line was — actually was dicta.”

“Dicta” is a dismissive word that refers to asides in an opinion that are not actually part of the court’s holding. The entry in the Blackmun papers to which the chief justice was most likely referring was a memo of Nov. 21, 1972 that the author of Roe v. Wade sent along with a new draft opinion to the other justices, noting: “In its present form it contains dictum but I suspect that in this area some dictum is indicated and not to be avoided.”

In that memo, of course referring to what was still a work in progress, Justice Blackmun proposed that the right to abortion be fully protected only until the end of the first trimester of pregnancy. “This is arbitrary,” he wrote, “but perhaps any other selected point, such as quickening or viability, is equally arbitrary.”

But two weeks later, after consulting with other justices, including Lewis Powell and Thurgood Marshall, Justice Blackmun circulated another memo endorsing the viability line. Far from describing this determination as arbitrary, he wrote in a memo dated Dec. 11, 1972, that viability “has logical and biological justifications,” namely, that “few could argue, or would argue, that a state’s interest by the time of viability, when independent life is presumably possible, is not sufficiently developed to justify appropriate regulation.”

In other words, by the time the court issued the final opinion in January 1973, viability was not dicta but rather an essential element of the decision. Chief Justice Roberts may not like viability — as clearly he doesn’t, observing to Julie Rikelman, the lawyer for the Mississippi clinic challenging the state’s ban on abortion after 15 weeks of pregnancy, that “viability, it seems to me, doesn’t have anything to do with choice” — but he was flatly wrong to suggest that it was an unconsidered aspect of Roe v. Wade.

(And of course it is extremely odd for a Supreme Court justice to dig into the court’s private work papers to cast aspersions on a published opinion.)

In fact, as the second Blackmun memo makes clear, the court that decided Roe saw a direct link between the viability line and a woman’s ability to choose abortion. In that second memo, Justice Blackmun referred to the “practical aspect” of the viability line, observing that “there are many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed.”

And then there was Justice Brett Kavanaugh, who rattled off a list of “the most consequential cases in this court’s history” that resulted from overruling prior decisions. If the court had adhered, for example, to the separate-but-equal doctrine of Plessy v. Ferguson rather than overruling that precedent in Brown v. Board of Education “the country would be a much different place,” he told Ms. Rikelman. “I assume you agree with most, if not all, the cases I listed there, where the court overruled the precedent,” Justice Kavanaugh continued. Why then, he asked, should the court stick with a case it now regarded as wrongly decided?

More gaslighting: The superficial plausibility of Justice Kavanaugh’s analogy between Plessy v. Ferguson and Roe v. Wade dissolves with a second’s contemplation. For one thing, Plessy negated individual liberty, while Roe expanded it. For another, Justice Kavanaugh’s list could have been 1,000 cases long without casting any light on whether today’s Supreme Court should repudiate Roe v. Wade.

But the justice’s goal was not to invite contemplation. It was to normalize the deeply abnormal scene playing out in the courtroom. President Donald Trump vowed to end the right to abortion, and the three justices he put on the court — Neil Gorsuch, to a seat that was not legitimately Mr. Trump’s to fill; Amy Coney Barrett, whose election-eve nomination and confirmation broke long settled norms; and Justice Kavanaugh — appear determined to do just that.

It was Justice Sonia Sotomayor who asked the uncomfortable question. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she demanded of Scott Stewart, a former law clerk to Justice Thomas who argued for Mississippi as the state’s solicitor general. Listening to the live-streamed argument, I first heard “political acts” as “political hacks,” I suppose because still in my mind were Justice Barrett’s words when she spoke in mid-September at a center in Louisville, Ky., named for her Senate confirmation mastermind, Senator Mitch McConnell. “My goal today is to convince you that the court is not comprised of a bunch of partisan hacks,” she said then.

Justice Barrett’s performance during Wednesday’s argument was beyond head-spinning. Addressing both Ms. Rikelman and Elizabeth Prelogar, the U.S. solicitor general who argued for the United States on behalf of the Mississippi clinic, Justice Barrett asked about “safe haven” laws that permit women to drop off their unwanted newborn babies at police stations or fire houses; the mothers’ parental rights are then terminated without further legal consequences. If the problem with “forced motherhood” was that it would “hinder women’s access to the workplace and to equal opportunities,” Justice Barrett asked, “why don’t safe haven laws take care of that problem?”

She continued: “It seems to me that it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.”

I’ll pass over the startling notion that being required to accept a vaccine is equivalent to being forced to carry a pregnancy to term. “Gaslighting” doesn’t adequately describe the essence of what Justice Barrett was suggesting: that the right to abortion really isn’t necessary because any woman who doesn’t want to be a mother can just hand her full-term baby over to the nearest police officer and be done with the whole business. As Justice Barrett, of all people, surely understands, such a woman will forever be exactly what she didn’t want to be: a mother, albeit one stripped of her ability to make a different choice.

I will give the gaslighting prize to Justice Kavanaugh and his suggestion that the court should simply adopt a position of “neutrality” with respect to abortion. Abortion is a contentious issue with important interests on both sides, he said to Solicitor General Prelogar. “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” he said. “And there will be different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”

Justice Kavanaugh painted a soothing description of a down-the-middle resolution, but Solicitor General Prelogar, for one, wasn’t fooled. “The nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them or not,” she responded.

Can Justice Kavanaugh really believe what he said? We’ll see soon enough. Last month, the court heard arguments in a case that challenges New York’s strict requirement for a license to carry a concealed weapon. Most states have looser restrictions. New York, through its legislative process, is in a minority.

Will Justice Kavanaugh and those of his colleagues who glorify a recently manufactured version of the Second Amendment allow New York City to keep going its own way on gun safety in the name of “letting the people decide”? That’s about as likely as the chance that those very same justices will decide to keep the right to abortion on the books. In both cases, we know what they’re going to do. The only mystery is how they will explain it.

Brett Kavanaugh’s Rage & Tears Are Revealing, Body Language Expert Says

PHOTO: ANDREW HARNIK/POOL/GETTY IMAGES.
Brett Kavanaugh’s forceful, aggressive testimony stood in stark contrast with Dr. Christine Blasey Ford’s polite deference as they both testified in front of the Senate Judiciary Committee on Thursday.
We have to be careful and remember that behavioral analysis alone cannot determine somebody’s guilt or innocence, says body language expert Patti Wood, author of Snap: Making the Most of First Impressions, Body Language, and Charisma. But after analyzing Kavanaugh’s testimony, she says it’s worth highlighting the revealing moments that say a lot about who he is.
“His extreme emotions and inability to control his anger, rage, contempt, and tears is revealing,” Wood tells Refinery29. “I have analyzed dozens of congressional hearings and I have never seen someone questioned display this broad range of emotions or this intensity.” Wood says Kavanaugh used emotions that are known as “cover emotions” in deception detection; anger, “victim tears,” and laughter. These emotions can be sincere and he could be showing them because he is innocent, but they can also “cover guilt,” she says.
“His tears seem real and they can certainly call forth empathy,” she continues. “They can show that he is absolutely innocent, but I have also seen in my work throughout the years that people who are ‘caught’ sometimes cry because they feel like victims of circumstances. I have additional problem with somebody crying during their congressional testimony. I have seen people eviscerated during congressional testimony. He was not questioned with the same intensity as many have been. He’s the first person I’ve ever seen cry.”
She notes that when questioned by senators, Kavanaugh tended to both evade questions and redefine their terms, something that doesn’t necessarily mean a person is guilty, but is a notable habit. She pointed out that it could have been a conscious choice to say, “I never had any sexual or physical encounter of any kind with Dr. Ford,” rather than using the name Christine Blasey, which she was known by back when they were teenagers, at the time of the alleged assault. “I have seen this technique used so often by liars,” she says. “He has a habit of rephrasing and redefining terms and of not answering direct questions.”
PHOTO: WIN MCNAMEE/GETTY IMAGES.
An example of evasion is when he responded to Sen. Amy Klobuchar asking him whether he had ever blacked out after drinking too much with “belligerent and attacking nonverbal cues,” responding with a question rather than an answer: “Have you?” Wood says he used humor and the “everybody does it, we all like beer response” to the questions about drinking. “I was very briefly a substance abuse counselor and I had to question people every week on their drinking and their behavior,” she says. “I would have asked him more specific questions like, ‘How many beers did you typically drink at a party?‘ ‘What is the most you ever had to drink in one evening?’ … The drinking questions are critical to the assault allegations, and it was interesting that that line of questioning was interrupted.”
Wood says that a key piece of Dr. Ford’s testimony was revelatory; when she said that Kavanaugh and Mark Judge’s laughter — “the uproarious laughter between the two, and their having fun at my expense” — is the strongest impression in her memory. “If Kavanaugh did it and he was laughing, he may not have seen it or felt it as anything but ‘horseplay,'” says Wood. “He may not have had it register in his memory as anything wrong or bad. And if he was drunk, he may not have remembered it at all. This is important because his anger is so strong and he seems so emphatic, and he could actually feel he never did anything like this.”
Wood emphasized that we still don’t know the truth.

How to spot a pattern of denials in the #MeToo movement

Brett Kavanaugh testifies to the Senate Judiciary Committee during his Supreme Court confirmation hearing on Sept. 27, 2018 in Washington, DC. (Win McNamee/Getty Images)

When Brett Kavanaugh denied sexual assault allegations, attacked his accuser’s memory, and then described himself as being the victim of a conspiracy — several psychologists knew what they were seeing: DARVO.

DARVO stands for deny, attack, and reverse victim and offender. The term was coined by a research team at the University of Oregon and the University of California, Santa Cruz, who identified the pattern alleged abusers use to deflect attention away from themselves and back to the person making the accusation.

University of Oregon psychology professor and Stanford fellow Jennifer Freyd, said that the reason it gets used frequently is that it works.

Jennifer Freyd is a psychology professor at the University of Oregon and a fellow at Stanford’s Center for Advanced Study in the Behavioral Sciences (Submitted by Jennifer Freyd)

“I did not expect … that so many people actually found the DARVO convincing. But it makes sense. I mean that’s why people use it,” said Freyd.

However, she said that the number of people who are inclined to believe a DARVO response, lessens significantly as soon as they understand its mechanics.

For example, Freyd identified Kavanaugh as someone who used this aggressive retort to shift blame away from himself when accused of sexual harassment by Christine Blasey Ford and other women.

Here’s how DARVO works, using Kavanaugh’s senate testimony.

DENIAL:

“The drinking age was 18 in Maryland for most of my time in high school and was 18 in D.C. for all of my time in high school. I drank beer with my friends. Almost everyone did. Sometimes I had too many beers. Sometimes others did. I liked beer. I still like beer. But I did not drink beer to the point of blacking out and I never sexually assaulted anyone.”

ATTACK:

“Dr. Ford’s allegation is not merely uncorroborated, it is refuted by the very people she says were there, including by a longtime friend of hers. Refuted.”

REVERSE VICTIM AND OFFENDER:

“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

Freyd asserted that while not everyone accused of an accusation is guilty, DARVO is not a good way to defend your innocence.

“You don’t have to respond defensively to an accusation, whether you’ve done it or have not done it. And a non-defensive response can really move people,” said Freyd.

Dem RIPS Kavanaugh for Dark Money Ties

In Sen. Whitehouse’s (D-RI) 7th speech on dark money and court capture, he exposes the dark money interests he says are tied to the FBI’s mishandling of the investigation on Justice Bret Kavanaugh and Christine Blasey Fords claims that Whitehouse says ultimately led to Kavanaugh being sworn in.

Sotomayor Calls Out Kavanaugh for Breaking His Promise to Death Row Inmates

The Supreme Court turned away an appeal on Monday brought by a man who faces the very real possibility of being tortured to death. Missouri intends to execute Ernest Johnson, who was sentenced to death in 1994, using pentobarbital; due to Johnson’s unique medical condition, the drug may inflict excruciating agony as he dies. Just two years ago, the court’s conservative majority—including, most prominently, Justice Brett Kavanaugh—suggested that an inmate in this exact situation could demand a different, less painful execution.

Johnson did precisely what Kavanaugh asked, asking that Missouri kill him by firing squad instead of lethal injection. Yet Kavanaugh and his five conservative colleagues ignored his plea on Monday, condemning Johnson to a death that may be violent and prolonged. In her pointed dissent, Justice Sonia Sotomayor highlighted her colleague’s perverse retreat from his earlier promise. It appears that Sotomayor, like Justice Elena Kagan, is fed up with Kavanaugh’s habit of posturing as a moderate, then voting like a reactionary. When the stakes are low, Kavanaugh knows how to sound like a reasonable, empathetic centrist. But when an actual person’s rights are on the line, Kavanaugh’s vote is nowhere to be found.

Johnson v. Precythe, the case that SCOTUS swatted away on Monday, constitutes yet another challenge to the grisly impact of lethal injection on the human body. In 2008, Johnson—who was convicted of murder and sentenced to death in 1994—underwent brain surgery to remove a tumor. In 2008, doctors removed about 20 percent of his brain tissue, causing severe scarring that left a brain defect. They did not eliminate the entire tumor. This trauma to Johnson’s brain, combined with remaining tumor cells, triggered epilepsy. Missouri now wants to kill him using pentobarbital, but the drug both triggers seizure and exaggerates sensations of pain. In 2016, Johnson alleged that lethal injection would therefore trigger a massive seizure and inflict an unconstitutional amount of pain, and initially asked that Missouri execute him using nitrogen gas instead.

This request was not far-fetched, since Missouri law explicitly authorizes the use of nitrogen gas in executions. In 2019’s Bucklew v. Precythe, however, the Supreme Court ruled that Missouri’s death row inmates could not demand death by gassing as an alternative to lethal injection. The court’s conservative majority held that gassing was not a viable option because it could not be “readily implemented” and had “no track record of successful use.” (Missouri’s neighbor Oklahoma currently uses gas for executions, as have many other states throughout history.) In short, Missouri did not want to figure out how to gas its prisoners, and the Supreme Court would not force it to learn. A state’s refusal to adopt new methods of execution can justify torture.

Bucklew was a brutal decision that was made possible by Justice Anthony Kennedy’s retirement. Kennedy served as a moderating force on Eighth Amendment issues, often limiting the scope of conservative decisions on capital punishment. And, indeed, shortly before he retired, Kennedy cast the deciding vote in a 5–4 decision staying the execution at issue in Bucklew. By the time the court heard arguments in the case, though, Kennedy had retired. It seems his hand-picked successor, Kavanaugh, was content with Bucklew’s extremism, since he joined the majority.

While Kavanaugh did not moderate Bucklew from a legal perspective, he did deploy a rhetorical smoke screen to make the decision sound less cruel. The justice wrote a concurring opinion to “underscore” an “additional holding” of Bucklew that favored capital defendants, one that “all nine Justices today agree on.” Yes, an inmate must present an alternative method of execution to avoid torturous lethal injection, the justice wrote. But, he added, “the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today’s decision.” Thus, there is “little likelihood” that an inmate will not be able to identify a feasible alternative. Kavanaugh also pointed out that Missouri had even conceded, at oral argument, that inmates could request a firing squad, even though that method is not authorized by state law.

Kavanaugh’s concurring opinion in Bucklew set out a clear path for Johnson. He could no longer demand death by nitrogen gas. But he could ask for death by firing squad, as the state itself admitted before the Supreme Court. So he tried to amend his complaint to plead death by firing squad as an alternative to lethal injection. Then he ran into a roadblock at the 8th U.S. Circuit Court of Appeals. According to the 8th Circuit, Johnson’s request came too late; he should have requested a firing squad earlier, before Bucklew came down, and before SCOTUS gave him a legal basis to do so.

How could that be? As Kavanaugh explained, Bucklew marked the first time the Supreme Court declared that capital defendants could request a method of execution that is not authorized under state law. Yet the 8th Circuit did not see it that way. It held that Bucklew did not constitute “an intervening change in law” that would allow Johnson to amend his complaint.

Kavanaugh should have leapt at the chance to correct this holding, which contradicted his own concurrence. But on Monday, he declined the opportunity. His inaction prompted Sotomayor, in dissent, to foreground his broken promise. Sotomayor’s dissent repeatedly cited Kavanaugh’s concurring opinion in Bucklew, quoting from it extensively. It was Kavanaugh, she noted, who explicitly wrote that Bucklew changed the law (which the 8th Circuit denied). It was Kavanaugh who wrote that inmates “in exactly this situation should have little trouble identifying an available alternative.” And it was Kavanaugh who “emphasized” Missouri’s agreement that an inmate could request a firing squad.

Johnson’s “only misstep,” Sotomayor wrote, was “failing to predict Bucklew and address it pre-emptively. He bears no fault for that.” The fault lies with Kavanaugh, who extended the hope of relief, then walked away when Johnson tried to take him up on it.

How Amy Coney Barrett played a role in Bush v. Gore — and helped the Republican Party defend mail ballots

Amy Coney Barrett was just three years out of law school, a 28-year-old associate at a boutique Washington law firm, when she was dispatched to Florida to help George W. Bush’s legal team rescue thousands of Republican absentee ballots.

The litigation was a sidebar to the central drama of the 2000 presidential contest, but a loss in the case could have cost Bush the presidency.

At issue were thousands of absentee ballot request forms in Martin County — just north of Palm Beach County, home of the notorious “butterfly ballot” — that had missing voter registration information.

After county officials allowed the GOP to take the forms back and fill in the missing information, a Democratic voter sued, saying ballots cast by those voters should be tossed out. The county canvassing board, the Florida Republican Party and the Bush campaign argued that the votes should still count.

Barrett’s work on the case serves as a reminder of how aggressively the Republican Party has sought to harness mail voting for years, in contrast to President Trump’s relentless attacks on the practice.

This year, the Trump campaign and Republicans in Iowa have pushed to invalidate tens of thousands of absentee ballot applications with missing information that had been filled in by county officials.

“It’s the very antithesis of what we were arguing to the courts back then,” said Daryl Bristow, who represented the Bush campaign in the Martin County absentee ballot case and a related suit in nearby Seminole County. “We were trying to keep voters from being disenfranchised.”

As both parties brace for the possibility of another contested election that Trump has suggested could go to the high court, the previously unreported role of his Supreme Court nominee in the absentee ballot fight is more than a historical footnote. Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh also played a role in Bush v. Gore — meaning that if Barrett is confirmed, three of the nine justices will have participated in litigation related to the only presidential contest to be decided by the high court.

“Here we are, two decades after Bush v. Gore, and it’s as if it was yesterday,” said Daniel Smith, a University of Florida political science professor. “It divided the nation 20 years ago, and it’s amazing how it continues to be a specter in national politics.”

In the U.S. Senate questionnaire she submitted late last month, Barrett said she spent a week in Florida contributing research and briefing assistance on Bush v. Gore, but provided no specifics. Court records show that she is on the list of lawyers who were served with filings in the Martin County case, indicating her involvement in that suit.

Barrett did not respond to a request for comment made through the White House and has not publicly discussed her precise duties in the Martin County case. In her Senate questionnaire, she said she worked in Florida with Stuart Levey, a partner in the Washington law firm Miller, Cassidy, Larroca & Lewin, who was part of the Bush team battling to keep the Republican mail votes. (Miller Cassidy merged with the venerable firm Baker Botts the following year.)

Levey declined to comment.

First in her law school class at Notre Dame and a former clerk for Supreme Court justice Antonin Scalia, Barrett fit the profile of the kind of up-and-coming conservative lawyer the Republican Party recruited to parachute into Florida to help in the hotly contested recount.

Amy Douthit Maddux, a junior lawyer on the Bush team who remembers communicating with another lawyer named Amy on the case, said, “It was just exciting to be able to work on something of such importance as a very young lawyer, and given the speed with which things were happening, everyone was relied upon.”

The Martin County plaintiff, Ronald Taylor, was seeking to capitalize on a glitch in the state Republican Party’s absentee ballot program.

Request forms sent by the party to Republican voters mistakenly omitted their voter registration numbers, leading those requests to be set aside by the Martin County elections office. The county elections supervisor allowed a local Republican Party official to take the incomplete request forms, add the missing numbers and return them the following day, according to court filings. GOP voters who had used the request forms to seek absentee ballots were then able to receive them. 

The Democratic plaintiff argued those votes were tainted. “It was a sinister underground conspiracy,” argued his attorney Edward Stafman, according to newspaper accounts.

Along with the similar lawsuit in nearby Seminole County, Democrats were trying to nix roughly 25,000 absentee votes in a contest in which Bush was leading by 537 votes.

Leon County Circuit Judge Terry Lewis listens as George W. Bush’s campaign lawyer Barry Richard, left, speaks during a hearing on Dec. 6, 2000, in Tallahassee
Reporters and spectators gather outside the Florida Supreme Court to hear the court’s decision in the presidential election recount case on Dec. 8, 2000 in Tallahassee.

Back-to-back trials were held in Leon County Circuit Court in Tallahassee. The judges issued a joint statement: “Despite irregularities in the requests for absentee ballots, neither the sanctity of the ballots nor the integrity of the election has been compromised, and . . . the election results reflect a full and fair expression of the will of the voters.”

Democratic presidential nominee Al Gore, whose campaign was making the case that every vote must be counted, did not join the lawsuits.

“It tells you that sometimes what goes around comes around,” said veteran GOP election lawyer Benjamin L. Ginsberg, who served as national counsel for the Bush campaign, and noted that Democrats this year are fighting to expand which mail ballots are counted. “You have to admire the irony of the moment since that is not consistent with the position [Democrats are] taking now.”

The Martin and Seminole County plaintiffs immediately appealed to the Florida Supreme Court as the clock ticked toward the deadline for the state to appoint its 25 presidential electors. “It was a crazy, crazy kind of schedule,” said Mark Miller, then a colleague of Barrett, who recalled scrambling with her from Washington to Orlando to assist the Bush campaign.

The same day the U.S. Supreme Court essentially handed the election to Bush by putting a stop to manual recounts in the state, the Florida Supreme Court upheld the trial court’s decision in the Martin and Seminole County cases.

“It was a no-brainer on the law,” Maddux said. “There was no proof anywhere that the people who voted should not have voted. But they were important cases because had it gone south, it would have been enough to change the results.”

Along with young lawyers like Barrett, the GOP pulled in seasoned constitutional experts for help in Florida.

Roberts, a then 45-year-old who had worked in the White House and argued dozens of cases before the U.S. Supreme Court as a partner in a Washington law firm, was summoned to Tallahassee to advise the Bush campaign and prep a lawyer appearing before the Florida Supreme Court.

That lawyer was Michael Carvin, a Washington-based voting rights expert, who said Roberts’ legal skills and grasp of constitutional issues were prized in the early weeks of the election dispute.

Bush-Cheney witness Laurentius Maris, a statistician, is questioned by attorney Phil Beck during the trial on Dec. 3, 2000, in the Leon County Court House in Tallahassee.
Michael Carvin and Barry Richards, lawyers for Republican presidential candidate George W. Bush, confer before their oral arguments to the Florida Supreme Court on Nov. 20, 2000, in Tallahassee.

The Bush campaign was opposing Democratic efforts to extend the recount in Palm Beach County and arguing that the Florida secretary of state had the authority to declare a winner seven days after the election. Lawyers hunkered down at the Republican Party’s headquarters in Tallahassee worked frantically to submit the brief to the Florida Supreme Court on a Sunday evening. “It was bedlam,” Carvin recalled.

To prepare for court the next day, Carvin, Roberts and a handful of others adjourned to attorney Barry Richards’s Tallahassee law office. In the relative quiet of a conference room, Roberts helped Carvin hone his responses to questions he expected from the state court judges, Carvin recalled.

“It wasn’t brain surgery,” he said, adding that the legal issues were straightforward. But he said having Roberts on hand was helpful not only for that moment, but in anticipating future legal developments.

Carvin said he and Roberts correctly guessed that Bush would lose that state court skirmish over the Palm Beach County recount. But while preparing for that battle, they developed a strategy that would raise the federal issues that would assure a later review by the U.S. Supreme Court, he said. 

Roberts returned to Tallahassee in December to offer counsel to then-Gov. Jeb Bush, who was in the crosshairs as his brother’s leading campaign surrogate and the chief executive of a state facing an election meltdown.

In an email to The Washington Post, Bush said he had asked his top legal advisers “to find the best constitutional lawyers to brief me on my Constitutional duties as Governor . . . I recused myself from responsibilities regarding state law but I had ministerial duties I wanted to do correctly.”

Frank Jimenez, then acting general counsel to Gov. Bush, said he recommended Roberts on a suggestion from Dean Colson, a prominent Miami lawyer who had co-clerked with Roberts for Supreme Court Justice William H. Rehnquist. The night before the appointment with Bush, Jimenez, a son of Cuban immigrants, took Roberts to Carlos’ Cuban Cafe in Tallahassee for dinner.

During their hour-long meeting, Roberts and Bush discussed two election-related documents the governor needed to sign and send to the National Archives, Jimenez said.

“Thank you for your time today. I really appreciate your input on my role in this unique and historic situation,” Bush said in an email to Roberts released shortly before the governor’s presidential campaign launch in 2015.

Lawyer David Boies, representing Democratic presidential candidate Al Gore, delivers his oral argument from the podium before the Florida Supreme Court on Dec. 7, 2000, in Tallahassee.
Leon County Court administrator Terre Cass reads the decision in the Martin and Seminole County election cases, on Dec. 8, 2000, in Tallahassee. Both judges ruled against throwing out the absentee ballots, a win for George W. Bush’s campaign.

In contrast to Roberts and Barrett, who worked quietly behind the scenes in Florida, Kavanaugh was out in public on behalf of the Bush campaign.

 

Then a 35-year-old partner at one of the nation’s largest law firms and battle-tested from working with independent counsel Ken Starr to investigate President Bill Clinton, he went to Democratic-leaning Volusia County in central Florida to help oversee a manual recount of roughly 200,000 ballots, according to Kavanaugh’s Senate questionnaire. He had been serving as a regional coordinator for the Bush campaign’s coalition of legal supporters.

Unlike in South Florida, where punchcard ballots led to the much-maligned hanging chads, Volusia County used optical scan ballots. Kavanaugh helped direct the Republican strategy of closely scrutinizing ballots where voters had failed to properly fill in the bubble next to a candidate’s name, said Shannen Coffin, another Republican attorney on the ground in Volusia.

Brett was kind of the guy we looked up to,” said Coffin, who later served as counsel to Vice President Richard B. Cheney. “If there was an irregularity in the recount process, he wanted it documented. It was a zealous representation of a client, but not a win-at-any-cost strategy.”

Weeks later, Kavanaugh delivered legal analysis on national television outside the U.S. Supreme Court on the eve of the momentous decision that ended the election morass. He would go on to serve as associate counsel to the new president.

I think what we are seeing is more of a divide over how to interpret the Constitution than really political differences,” Kavanaugh said in the interview with CNN’s Wolf Blitzer. “I don’t think the justices care that it’s Bush versus Gore or if it were Gore versus Bush. What they care about is how to interpret the Constitution, what are the enduring values that are going to stand a generation from now.”