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Charles Bierbauer on the impact of the U.S. Supreme Court ruling in Bush v. Gore

CNN Senior Washington Correspondent Charles Bierbauer

CNN: Is it unusual for the court to have so many dissents and concurring opinions attached to an "per curiam," or unsigned opinion?

Charles Bierbauer: It's not unusual to have multiple opinions, both separate writings by justices who are concurring -- agreeing with -- the ruling and then by justices who are dissenting from it. In some cases you get concurrences in part and dissents in part, so it can be very complex. This was certainly one of those instances when you had a total of six different opinions, since each of the four dissenting justices wrote his or her own dissent. We don't get always a clear cut, 9-0 short opinion. We didn't last night.

CNN: Justices Anthony Kennedy and Sandra Day O'Connor were expected to be key swing votes in the case, but they didn't join any of the signed opinions. Can you tell what their opinions were?

VIDEO CNN's Charles Bierbauer and Roger Cossack analyze the U.S. Supreme Court decision in Bush v. Gore (December 12) Play video (QuickTime, Real or Windows Media) Bush campaign observer James Baker reacts to the decision of the U.S. Supreme Court regarding the election recounts (December 12) Play video (QuickTime, Real or Windows Media)  COURT OPINION • U.S. Supreme Court opinion in Bush v. Gore (FindLaw) * * FindLaw documents requiring (Adobe Acrobat Reader)  TRANSCRIPT • Simultaneous audio and transcript of the hearing in Bush v. Gore (Courtesy Northwestern's Oyez Project and FindLaw) • Official court transcript of oral arguments in Bush v. Gore PDF | HTML  QUOTES Excerpts from the U.S. Supreme Court opinion in Bush v. Gore  AUDIO Listen to the audio from the Supreme Court hearing (December 11) Select Video Part 1 Part 2 Part 3 Part 4 Part 5 Part 6 (QuickTime, Real or Windows Media)  IN-DEPTH Reviewing the Vote: The U.S. Supreme Court hears Bush v. Gore  GALLERY Scenes of protest and patience as Supreme Court weighs Bush v. Gore  TIMELINE Key events in the Gore election contest Read the timeline  U.S. SUPREME COURT DOCUMENTS Read the Bush brief * Read the Gore brief * U.S. Supreme Court order granting a stay of recounts * More related documents * FindLaw documents requiring (Adobe Acrobat Reader)  RESOURCE How the U.S. Supreme Court voted on the recount stay  ALSO • Bush, Gore briefs preview oral arguments at U.S. Supreme Court

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Charles Bierbauer: Yes. Oh absolutely. Justices O'Connor and Kennedy are among the five that constitute the majority in this and they are parties to the per curiam opinion. Some court watchers seem to sense the hand of either Justice Kennedy or Justice O'Connor in writing that opinion, with Chief Justice Rehnquist writing the separate concurrence that Scalia and Thomas signed onto. What we don't have is their distinct voices in any signed or named opinion.

CNN: The justices have been accused, by some, of being partisan, and criticized for not being more unified. Is that fair criticism?

Charles Bierbauer: Let me tell you what happened Wednesday afternoon. Justice Clarence Thomas was meeting with a group of high school students in an event that had been set up a long time ago by C-Span, and Justice Thomas remarked that the students' timing was certainly interesting.

He referred to this as being two exhaustive and instructive weeks. He said that certainly the issue was complicated and that people have strong opinions about it. He said, and this is a quote, "People here are human beings, they are passionate," going on to say "but here, going into my 10th term, I can honestly say that the effort here is not to be self interested, it is to fulfill our oaths."

Then later on, one of the students asked Justice Thomas what role politics plays inside the court and Justice Thomas said, "Don't try to apply the rules of the political world to this institution, they do not apply. It's not like across the street," meaning Congress. "The last political act we engage in is our swearing in." He said that he had not encountered partisan politics in nine years.

Now yes, people come in under partisan banners, but a lot of the justices will say that once they are inside the court they don't play politics in the way that politicians do.

Then, Chief Justice William Rehnquist, was encountered in corridor shortly after Justice Thomas's remarks and asked about it: 'Justice Thomas said there are no politics involved here' and Chief Justice Rehnquist said 'Absolutely.'

CNN: Is it normal for the justices to comment on such an important case, immediately after their ruling?

Charles Bierbauer: It's absolutely, astonishingly unusual, but the justices do a lot of meetings with groups, students, generally off the record, rarely in front of cameras. C-Span has been very effective in their Justice Project of doing a lot of court things and occasionally, about once a year, they'll get a justice to do something for them. As I said, this was something that had been long scheduled and it's usually not very newsworthy, but in this instance, timing made it so.

And as for the chief justice, no we don't usually see him wandering around the hallways. He had come down to thank his public affairs office staff for handling the dissemination of the opinion last night, which he thought went very well.

Let me add what the chief justice said in regard to the release of the audiotape. I asked him what he thought about that. He said he was surprised by the degree of interest. "We're not going to do it in every case," he said, "perhaps in rare instances."

CNN: Some of the opinions contained some pretty strong language. Is that usual in such a close ruling?

Charles Bierbauer: The language is usually passionate in cases where the issues are passionate and as Justice Thomas suggested, this is one of those issues. You see on questions that deal with voting rights, that deal with abortion, some of the more vigorously argued social issues. Justices Stephens and Ginsburg wrote very strong dissents. On the other hand, Professor Laurence Tribe, one of the attorneys for Vice President Gore, who argued in fact, before this court in the first instance of them hearing the Florida recount case, told CNN last night that dissents tend to be more apocalyptic in their terms. It's easier to write a dissent that does not speak as the voice of the court and write it in those stronger and more intense terms.

CNN: Does that say anything about the relationships between members of the court?

Bierbauer: It's very hard. I think it speaks to their passion on issues, but not necessarily to their demeanor and judgments of each other. One of the curious rituals of this court is that before they take the bench to hear arguments, each of the justices shakes hands with each of the other justices. A sign of solidarity, I suppose, a symbol of their distinct office.

The justices tend to work pretty independently, the justices tend to circulate their opinions, their drafts. Justice Thomas today said members of the court don't pair off, they're not in cliques. There are different majorities in different cases that sometimes defy the conventional wisdom. Yesterday's ruling in the Florida case did not defy conventional wisdom. It fell along the most predictable fault line of those justices who are judicially conservative and those who are judicially liberal.

But, for example, Justice Scalia and Justice Ginsburg are both known opera fans and spend time together so there are pairings that cross those kind of divides.

CNN: What impact will this case have on election law?

Charles Bierbauer: Well it's directed towards Florida law, but it's inevitable that any case involving a recount, any candidate and his lawyers around this county, who feel that there is a problem with a recount and a problem of equal protection, whether all votes and voters are treated alike, is certainly going to refer to this judgment by the Supreme Court.

It will certainly have the potential of becoming what is described here as a landmark ruling. I don't know if we put that stamp on it just yet, but it is laying down not just a rather high hurdle for Florida to cross in the waning days of this count -- and perhaps the days have already elapsed -- but it is also setting a benchmark for future elections when it says the standard must be uniform across the state, it must have a mechanism for verification and it must have a certain degree of judicial review but at the same time be deferential to state legislatures in defining the laws for each state. So this is a very important ruling, as complex as it is and divisive as it certainly will be. For those with political interests, this is a substantial ruling.

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Supreme Court of the United States
Supreme Court of Florida

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