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Bush v. Gore docs among new releases from Justice Stevens' archives

The Library of Congress is releasing a new trove of documents detailing the bulk of Justice John Paul Stevens' tenure on the court, including the crucial decision in the 2000 election.
Supreme Court Justice John Paul Stevens in 2002.
Documents the tenure of the late Supreme Court Justice John Paul Stevens are being released Tuesday.David Hume Kennerly / Getty Images file

WASHINGTON — Internal documents concerning the Supreme Court's historic Bush v. Gore decision in 2000 that handed the White House to President George W. Bush were made public Tuesday, with the Library of Congress releasing a new trove of papers from the archives of Justice John Paul Stevens.

Stevens, who died in 2019 at age 99, was a liberal member of the conservative-majority court who dissented in the ruling that ended a recount in Florida, handing Bush a victory over Democratic opponent Al Gore. The court was divided 7-2 in faulting the Florida Supreme Court's implementation of a recount, but split 5-4 on finding that no further recount could take place, with the four liberal justices dissenting.

Highlights identified by Library of Congress archivists include barely legible handwritten notes taken by Stevens in the private meeting in which the justices discussed the case. In one notation, Stevens seemed to report that conservative Justice Clarence Thomas said the Florida Supreme Court "did not give us an option" because of the way it decided the case. Thomas was part of the majority that overturned the state court ruling.

Broward County Canvassing Board Member Judge Rober
Robert Rosenberg, a now-retired judge who was a member of the Broward County Canvassing Board, inspects a ballot with an unidentified observer on Nov. 23, 2000, in Fort Lauderdale, Fla., during a manual recount of votes in the presidential election.Rhona Wise / AFP via Getty Images file

Some of Stevens' notes concern now-retired Justice Anthony Kennedy, frequently the deciding vote on the nine-justice court at the time, although they are hard to decipher. Stevens also scribbled that he thought Justice Ruth Bader Ginsburg might "go along" with Kennedy, who joined the majority while Ginsburg ended up dissenting alongside Stevens.

Kennedy, who authored the main opinion in Bush v. Gore, wrote in a memo: “The dissents, permit me to say, in effect try to coerce the majority by trashing the Court themselves, thereby making their dire, and I think unjustified, predictions a self-fulfilling prophecy.”

One of the dissents was authored by Stevens, who wrote: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

The documents made public Tuesday relate to a 21-year period of his Supreme Court tenure, from 1984 to 2005.

Papers of the late Supreme Court Justice John Paul Steven
Papers of Justice John Paul Stevens, including his notes during Bush v. Gore, are being made available to researchers at the Library of Congress. J. Scott Applewhite / AP

Other big cases in which Stevens participated during that period include abortion, the death penalty, gay rights and the war on terror.

Stevens donated papers from his 35 years on the court to the Library of Congress, which is releasing them in stages. Documents from his early Supreme Court years, from 1975 to 1984, were released in 2020. Papers from the last stage of his career, from 2005 to 2010, will not be made public until 2030.

Stevens had written at length about his time on the court, including the internal deliberations over Bush v. Gore, so it is unclear how much the newly unveiled documents will add to what is already known.

Stevens was appointed in 1975 by President Gerald Ford and retired in 2010. President Barack Obama appointed liberal Justice Elena Kagan to succeed him.