ASHINGTON - Little is known about the internal workings of the US Supreme Court, but the role that Justices David Souter and Stephen Breyer played in trying to build a court consensus around the issue of equal protection was pivotal in the ruling that gave the presidency to George W. Bush.
Ironically, the two New Englanders who defined the court's central problem with the Florida vote - that it was unfair for counties to have different standards for determining legal ballots - rejected the majority's remedy: Stop the manual recounts altogether.
Souter and Breyer ended up on the losing side and, in separate dissents, sharply criticized the five justices in the majority for refusing to let the Florida Supreme Court devise a single standard and get a count that passed constitutional scrutiny done before the Electoral College meets next week.
''Unlike the majority, I see no warrant for this court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, Dec. 18,'' Souter wrote in a dissent challenging his colleagues' ''erroneous judgment.''
Breyer, who discouraged dissents when he was chief of the federal appeals court in Boston, wrote one that was even more stinging.
''I fear that in bringing this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary `check upon our own exercise of power,' (and) our own sense of self-restraint,'' Breyer wrote, quoting from a 1936 Supreme Court decision. ''The most important thing we do is not doing.''
Along with Chief Justice William Rehnquist, Souter and Breyer have a reputation for being strong guardians of the court's institutional integrity, and passionate opponents of picking political fights. Souter, a former New Hampshire attorney general, and Breyer, who served as counsel to the Senate Judiciary Committee, both argued that the Bush-Gore contest could be better settled in Congress than the courts.
''There's no question that this has been absolute agony for David Souter,'' said Stephen Wermiel, who teaches a course on the Supreme Court at American University's Washington College of Law. ''I think he would have done anything in his power to keep this from happening to the court because he believes so deeply in the court as an institution and is conscious of its role in society.''
Souter and Breyer did not want the Supreme Court to take up Bush's appeals from the Florida Supreme Court, but they were outvoted. Souter, a former member of the New Hampshire Supreme Court, reportedly was so agitated when the justices halted the manual recount ordered by the Florida court on Dec. 9 that he insisted opinions be issued explaining it to the public, even though that rarely happens.
The 5-4 vote to stop the recount was a signal the court was inclined to rule favorably for Bush and reverse the Florida Supreme Court.
''David can count, and he knew he was going to lose,'' said a source close to Souter. ''So he set about to find a way to make the result palatable and legitimate to the American people, even if he disagreed with the result.''
In Monday's oral arguments, Souter and Breyer persistently questioned lawyers for Gore and Bush on whether Florida's varying standards for judging a punch-card vote violated the 14th Amendment's equal-protection clause. Souter said he believed it did.
Breyer, who has a knack for asking pragmatic questions, pressed the attorneys to define what a uniform standard might be.
Souter, in what court-watchers said was an overture aimed more at building a consensus among his fellow justices than at the lawyers, suggested the Supreme Court could send the vote-count case back to the Florida Supreme Court with instructions to solve the problem.
Justice Anthony Kennedy, one of the court's moderate-to-conservative members and often a swing vote, picked up the issue and peppered Gore lawyer David Boies with equal-protection questions. Boies had replaced Harvard professor Laurence Tribe at the court Monday because some Gore aides thought his style might be more appealing to Kennedy and Justice Sandra Day O'Connor, another swing vote.
But the two New Englanders lost when it came to choosing a remedy. Ending the recount was not what Souter or Breyer had sought, and in his dissent, Breyer said there was ''no justification'' for a remedy that ''harms the very fairness interests the court is attempting to protect.'' The vote to end the recount was 5-4.
''Above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the court itself,'' Breyer said. ''We do risk a self-inflicted wound - a wound that may harm not just the court, but the nation.''
Morton Horwitz, a professor of American legal history at Harvard Law School, where Breyer taught for three decades, said the justice chose those words - self-inflicted wound - precisely. They were used by Chief Justice Charles Evans Hughes in 1928 to describe the damage the court had done itself and the country when it ruled in the 1857 Dred Scott case that black people could not be US citizens.
''Historians will remember the Bush opinion as one of the most partisan ones it ever rendered,'' said Horwitz, who is teaching this year at Stanford University. ''When Breyer talked about a self-inflicted wound, he was talking about the court's institutional legitimacy that could take years to restore.''
Horwitz called Souter and Breyer kindred spirits - not just because they came to the court from New England, but because they both graduated from Harvard Law School right after the high court's Brown v. Board of Education decision that ended school segregation and in an era when the faculty was preoccupied with the competence and integrity of the US Supreme Court.
Souter, a Republican appointed to the court by President Bush, and Breyer, a Democratic protege of Senator Edward M. Kennedy and an appointee of President Clinton, are kindred spirits for an unrelated reason as well: People constantly mix them up.
Friends recall that on a recent stroll through Harvard Square, Souter was stopped by an excited tourist and asked to pose for a picture. The shyest justice on the US Supreme Court agreed, only to have the man turn and introduce his wife and son to ''Justice Stephen Breyer.''
