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Centennial Crisis by William H. Rehnquist (Knopf, 288 pages, $26)

In an era when the public and private utterances — and vacations — of our Supreme Court justices are eagerly dissected for signs and portents, a brow or two will furrow when the chief justice enters the fray to write about canvassing boards, delegate count shenanigans, and presidential candidates who tally more votes but come up empty-handed. Chief Justice William Rehnquist’s book about the disputed 1876 election, Centennial Crisis: The Disputed Election of 1876, chronicles the post-election deliberations and machinations that led to Rutherford B. Hayes being awarded the presidency by a single electoral vote over Samuel Tilden. Alas, the premise of Crisis suggests a window into more timely presidential affairs, but sheds no light on the 2000 election debacle that ultimately ended up on the doorstep of Rehnquist’s place of work.

Given the failure of contemporary observers to make sense of the Bush-Gore meltdown that preoccupied courts, legislatures, and “Saturday Night Live” sketches, it is, of course, too much to ask that the chief justice kindly telegraph his closely held observations within the lessons of a mangled election 128 years past. History may yet offer Rehnquist’s thoughts on Bush v. Gore, perhaps in the intriguing ways that Justice Harry Blackmun’s papers have illuminated Roe v. Wade, and his long service on the Court. But the chief justice was playing it straight when NBC News asked him if there were clues to unraveling the Court’s resolution of the 2000 election in his book. “I really don’t think there are,” he conceded.

Yet Crisis is not devoid of contemporary context about the jurist who has led the Court since President Ronald Reagan elevated him in 1986. To the great disappointment of Courtologists, the insight into the chief justice has little to do with politics, jurisprudence, or retirement plans. Instead, what Crisis shows more than anything else is that the 79-year-old justice, who has spent more than three decades in the often cloistered confines of the Court, remains an intellectually curious sort who researches and writes for pleasure, and does it with considerable zeal. For instance, nowhere in Crisis is there a suggestion that a research assistant did substantial legwork, or ghosting, for the author. None of this, or anything in Crisis, will change any minds about Rehnquist’s jurisprudence or stewardship of the Court. Nor should it. But even as the chief justice begins to publicly muse about retiring from the Court, it seems a credible sign that he remains considerably engaged with his life’s work.

To be sure, Crisis is an academic exercise. Its gaze back at the 1876 election does not purport to make a judgment on the propriety of Hayes’ ascension to the White House, or the underlying circumstances that led Democrats to derisively tab the appointed president as “Ruther-Fraud.” Instead, it prefers a dispassionate accounting with special focus on the historical context that led the nation to divide its votes so closely, and the roles of the five Supreme Court justices who sat on the electoral commission that sealed President Hayes’ job and Tilden’s political fate.

Given the rich subtext of the 1876 election and Vice President Al Gore’s reprisal of Tilden’s hard-luck scenario, the chief justice isn’t the only author that has cast an eye on the centennial election. Also worthy of consideration is Roy Morris Jr.’s Fraud of the Century: Rutherford B. Hayes, Samuel Tilden, and the Stolen Election of 1876, published in 2003. Morris provides a less process-oriented treatment, with a clearer viewpoint of what the assembled evidence means in a political and social context.

The sun set on 1876′s Election Day with it apparent to all of the partisans that Tilden had won the popular vote. Yet by morning, a cast of Republican characters that included the editor of The New York Times had mapped out a strategy for a Hayes victory: Focus attention on the core states where the electoral vote was in doubt, and if those were secured, Hayes would salvage a win. What followed were bipartisan antics of fixers and foes doing their best to secure electors in Florida, South Carolina, and Louisiana. Rehnquist colorfully notes that, with so much at stake, bribes and political patronage were among the forms of ready currency for what came to be known as “visiting statesmen” to the battleground states.

What this Southern political cauldron lacked in butterfly ballots and 24/7 television coverage it made up for with bare-knuckled hardball that would make Chris Matthews blush. Crisis offers a survey of the skullduggery, and the chief justice takes up the inquiry with verve. Louisiana, perhaps, offered the clearest sense for Tilden backers that their pockets had been picked. There, the State Returning Board morphed a Tilden lead of 8,000 to 9,000 votes into a 3,000 margin for Hayes. “[I]t may not have been coincidental,” Rehnquist muses, “that Hayes, after he was elected, appointed [the board's chair] and two other members of the board to local federal offices.” In South Carolina, while Democrats carried their state ticket, the federal election was quickly certified for Hayes, prompting a response from the democratically controlled state supreme court: it held board members in contempt, fined them, and tossed them into county jail for certifying electors for Hayes.

After the initial rough and tumble in the states, the drama of 1876 played itself out in a more centralized fashion than in 2000. While protesters on a per diem, and a legal cast of hundreds — headlined by David Boies — set up camp in the Sunshine State, the Hayes-Tilden dispute played out primarily where Bush-Gore ended: in Washington. With a divided Congress unable to lend clarity to the election, an electoral commission of 15 was conceived to bring closure to the election. Five congressional members from each party, representing the divided houses, were joined by five justices of the Supreme Court. Two justices each, appointees of the two parties, were placed on the commission, and they selected their fifth Court colleague. Justice Joseph Bradley came to be the commission’s swing vote as a backup plan, when the Court’s true independent, Justice David Davis, was elected to the Senate from Illinois and became unavailable to serve. Rehnquist readily acknowledges that contemporary observers in 1876 knew what watchers of his Court knew in 2000: the election of a president would lie as much with a swing vote on the Supreme Court as with voters and electors among the states.

The chief justice ably describes the terrain that led to the commission’s ultimate decision in favor of Hayes, and its unwillingness to “look behind” the formal certification of electors by the states in order to delve into the marked fraud and abuse that marred the election. That such a momentous conflict in a still-nascent democracy would be settled by a question of discerning the commission’s proper scope of review will recall law school hornbooks for many readers, and no doubt rekindle many of the 1876 frustrations that a contested election was not resolved by its facts. Not much has changed in 128 years, after all.

Crisis is carefully and narrowly drawn, and is best when painting small pieces of the mosaic that was the Hayes-Tilden imbroglio. Rehnquist offers helpful context to understanding the state of the country leading up to the election, and interesting detail of the public and political lives Hayes and Tilden led before sharing the national spotlight together. Yet the persistently neutral reportage that serves as the backbone for Crisis also bars it from being a piece of interpretative history that many readers will find themselves wanting from an author so peculiarly well-positioned to deliver it. The chief justice answers, affirmatively, the question of whether the Court’s involvement in 1876 was the right thing for the country. Yet Crisis largely avoids, intentionally, the question that fairly pervades any consideration of 1876′s electoral trauma: Did the country get the president it actually elected?

As for the Court’s role in the 2000 election, it’s left to a later history of the Rehnquist era to furnish the dicta that, for now, cannot embellish this rendition of the Hayes-Tilden saga.

Brad Risinger is a partner in the Raleigh, N.C., office of Smith Moore LLP.

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