Looking back at the time when the Supreme Court was making its very divided decision in Bush v Gore, I'm struck by a description of David Souter leaving the building after the decision had been made. In general the more liberal justices had signed Justice Stevens' dissent, each writing in his or her own comments.
Justice Souter did not sign. He wrote his own dissent and also signed the major portion of the Ginsburg and Breyer dissents. While Justice Souter's writing style can be convoluted, in this instance it was so direct as to be almost conversational, his anger controlled but his extreme disappointment evident. ''I write separately only to say how straightforward the issues before us really are,'' he said.
Photographs taken later of the justices as they drove out of the building's underground garage showed Justices Scalia and Breyer looking grim but determined, while Justice Souter looked hollow-eyed and ashen.
Souter knew something really bad had just gone down.
Once in a while you will see the "hollow-eyed and ashen" look on someone in a similar situation. Senator Leahy's physical appearance -- a look of fear and disgust -- during a Senate Judiciary Committee meeting comes to mind. It was a session in which Attorney General nominee, Alberto Gonzales, was oiling his way into office.
The description of Souter also reminds me of something which was the polar opposite -- notice by only a few people, as far as I know, and by no one in the media. It happened during the back and forth on election night 2000 at one of those moments when the count favored Gore's favor. The camera was on George W. Bush sitting in an armchair alongside various family members and staffies and cameras. He was told, on camera, of the then-probable Gore victory. Bush's face showed very, very clearly that he knew that was bullshit and knew that he'd won.
The fix was in. The look on Bush's face was unmistakable. The message was so strong that it felt like being hit in the ribs. Pow! There's more, much more, to this "election" than we'll ever know for sure.
Maybe Souter had watched the same channel on the same night. Maybe he knew in his heart of hearts, as some of us did, that things were not at all as they seemed. It certainly taught me a lesson: pay attention not to what the media show and tell you, but to what your eyes and ears know.
