Pushkin. Hey Leon here, Before we get to this episode, I want to let you know that you can binge the entire season of Fiasco Bush v. Gore right now ad free by becoming a Pushkin Plus subscriber. Sign up for Pushkin Plus on the Fiasco Apple podcast show page, or visit Pushkin dot fm slash Plus. Now onto the episode. Previously on Fiasco.
Voce wins one round, Gore wins the next.
It is a legal slugfest.
We've gone from protest certification last night and now contest.
Florida's ticking clock becomes a second adversary. December twelfth is key the dave Florida certifies it's electors.
The Republican controlled state legislature scheduled a special session to name electors just in case the state Supreme Court rules against Cavador Borsch.
By a vote of four to three, the majority of the court has ordered a manual recount of all under votes in any Florida county where such a recount has not yet occurred. The recount shall commence immediately.
If you do not like political chaos, it's about time to head for the storm.
Cell Sandra Dey O'Connor had a lot on her plate On November seventh, two thousand. It was election day, for one thing, and she had plans to attend a watch party at a friend's house. But first O'Connor was due at the United States Supreme Court.
Well here argument now number ninety nine twelve fifty seven Carol M. Browner VERSUS American Trucking Association.
Where she and the other eight justices were scheduled to hear oral arguments in a case involving the Clean Water Act.
Now why would Congress want that advice on economic and energy efficts.
O'Connor also had an important personal matter to attend to. Her husband, John had been sick, and she was trying to gather information in his condition.
On election day, Sandra O'Connor spoke to her husband's neurologist for the first time about John's Alzheimer's.
This is journalist Evan Thomas. He's the author of First, a Biography of Justice O'Connor, for which he interviewed her family members and former clerks, as well as her husband's neurologist. According to Thomas, John had been experiencing memory loss for several years, but he had been hesitant to call it what it was now. On the phone with his doctor, Justice O'Connor was trying to get a handle on her husband's diagnosis.
John had finally started using the word Alzheimer's to talk about his condition, and she asked if there was perhaps some experimental program that he could be put into to keep the loss of memory away for as long as possible. Was there some kind of experimental program that could by him time?
Sandra Dey O'Connor had a decision to make. She and her husband were both seventy years old, and she'd always thought that eventually they would move back to Arizona, where they had settled a few years into their marriage. If the two of them wanted to do that before his dementia got worse, O'Connor would need to retire from the Supreme Court sooner rather than later. The question was whether or not she could.
They had considered retirement as early as nineteen ninety six. President Clinton was president, so they didn't want to retire while there was a Democrat there.
O'Connor was a Republican, and if al Gore won the two thousand election, she knew that she would face enormous pressure to remain on the bench at least through his first term.
According to her son Scott, they were at least thinking about retiring if there was a Republican president if Bush won.
Good evening, President Reagan today named a woman to the Supreme Court and another barrier fell.
O'Connor had been a justice for nineteen years. She was the first woman ever nominated at the Supreme Court.
She is truly a person for all seasons, possessing those unique qualities of temperament, fairness, intellectual capacity, and devotion to the public.
For years, O'Connor was a reliable member of the Court's conservative flank, but as the Court moved to the right under Reagan and George H. W. Bush, she increasingly found herself occupying the court's ideological center, and that was a powerful place to be.
When Senator O'Connor was on the Court for many years, she simply was the swing justice at the Court.
This is Dalia Lithwick, who writes about the law for Slate. Lithwick started covering the Supreme Court in nineteen ninety nine.
She was a Reagan appointee who taxed left on affirmative action, on abortion, on church state separation. There was no case that wasn't decided in some ways by O'Connor if it was a five to four case.
According to Lithwick, O'Connor didn't get a lot of respect from legal.
Schot She was derided often in polls by snotty law students as the stupidest justice. I mean, people really didn't think she was, as a doctrinal matter, the smartest justice. But what she was was a pragmatist, and so she tended to sort of stand in the middle, four four on either side and say, what's going to fix this.
O'Connor didn't like to be thought of as some unprincipled weather vane who turned whichever way the wind was blowing. Here again is Evan Thomas justice.
O'Connor cared about the practical impact of the Supreme Court decision. She wasn't in love with doctrine. She didn't look closely at doctrinal consistency. Was she really cared about was the practical impact. How is this going to play in the real world.
On election night two thousand, the O'Connors went to their friend's party and watched the returns on a television set in the basement den. Shortly before eight o'clock, the networks called Florida for Gore, a big.
Call to make. CNN announces that we call Florida in the Al Gore column.
This is a roadblock the size of a boulder to George W.
Bush's path to.
The White Given the rest of the electoral map, it looked like Gore was about to clinch the presidency. Two witnesses later told Newsweek that Justice O'Connor was visibly disappointed. This is terrible, she said, before leaving to get a plate of food. According to Newsweek, John O'Connor tried to clarify for the people still in the room that his wife was only upset because a Gore presidency would force
her to wait another four years before retiring. But Gore was not elected president that night, and later, as all the lawsuits being filed in Florida were winding their way through county and circuit courts, O'Connor's son suggested to his mother that the recount battle could end up in front of the Supreme Court. It was a jarring thought. The Supreme Court was supposed to stay above politics. That was the premise of legitimacy as an institution. If O'Connor's son
was right. If the Court got involved in a case that directly affected which party took control of the White House, that premise would be tested in dramatic fashion. But Justice O'Connor did not think that was going to happen, and she told her son he was being ridiculous. I'm leon Neefok from Prologue Projects and Pushkin Industries. This is fiasco Bush v.
Gore, the lawyers for hold Gore and George W. Bush, pedant of the US Supreme Court.
She was trying to save the country from what she saw as a car crack.
Just as probably the most significant decision in thirty years.
You cannot imagine a more chance, pressure packed moment.
Episode six, our season finale. No Precedent How the two thousand election was put to rest in a Supreme Court case called Bush v. Gole, and how a ruling that was explicitly designed to set no precedent ended up changing everything. I didn't know this before I started researching the two thousand election, But Bush v. Gore was not the first lawsuit to crawl out of the swamps of the Florida
recount and reach the U. S Supreme Court. I had always thought the Court swooped in at the very end, but this earlier case preceded Bush v. Gore by a full fifteen days.
Drawing on very rarely used legal powers, the Supreme Court has, for the first time in American history, decided to step into a legal dispute in the midst of a presidential election.
The case centered on the first big ruling handed down by the Florida Supreme Court during the recount. This was the one you heard about in episode three, the one that forced Secretary of State Catherine Harris to wait nearly two extra weeks before certifying the election results.
Here's the latest.
Florida's highest state court has blocked the Secretary of State certain.
What it basically means in an opinion that justice has reached unanimously is that the hand counts continue, and the hand counts count.
But the justice.
The new deadline set by the Florida Supreme Court had briefly given the Gore campaign reason for hope. But the Bush team quickly appealed the ruling, and this time there was only one place left for the case to go.
To, the U. S.
Supreme Court.
Bush is arguing that the state court overreached its authority and rewrote election law in a way that violates the US Constitution.
In their petition to the U s Supreme Court, Bush's lawyers argued that by pushing back the certification deadline, the Florida Supreme Court had improperly changed an election law put in place by the Florida state legislature. In doing so, they had violated Article two of the Constitution and Title three, Section five of the US Federal Code. On November twenty fourth, the Supreme Court agreed to hear the case.
A huge legal gamble pays off for the Bush campaign.
Oral arguments were scheduled for December first, The battle for.
The White House goes before the US Supreme Court, Bush gore, and a day for the history books.
There was something momentous about the Supreme Court intervening in a presidential election. But by the time oral arguments rolled around in December first, the case had lost a lot of its urgency. The certification had come and gone. Catherine Harris had already declared Bush the winner. What difference did it make now whether the Florida Supreme Court had been wrong to set the new deadline. But Bush did not want to drop the case, and the Supreme Court kept it on the docket.
We'll hear i arguement this morning in number eight thirty six George W. Bush versus the Palm Beach County Canvas.
In oral arguments, the Gore side made the case that extending the deadline did not amount to passing a new law. It was merely a judicial interpretation of an existing law, something judges did all the time.
As a way of shedding light on the provisions that are in conflict, so long as it's not done in a way that conflicts with a federal man.
The Bush side made the opposite point. What if it had been the Florida State legislature that decided to change the date of the certification deadline, wouldn't that be considered a new law? Why was it any less of a new law just because it came from the Florida Supreme Court. Here's Ted Olsen speaking in oral arguments.
I would emphasize that what the Florida Supreme Court did is basically essentially say rewriting the statute, were changing it.
When they issued their ruing three days after oral arguments, the Supreme Court showed a reluctance to interfere with the proceedings in Florida.
The case is submitted.
The Supreme Court's historic hearing ended with a less than historic decision.
Instead of weighing in on the constitutional issues at hand, the Court sent the case back to the Florida Supreme Court and asked them to provide an explanation of how they had reached their decision. Florida Supreme Court Chief Justice Charles Wells was puzzled by the request. The timing just didn't make sense to him.
I talked the whole week before they their order that they were going to enter in order. Finding that the case had become moot, just dismissed that appeal.
Instead, the Supreme Court was asking Wells and his colleagues to go back to the case and take another stab at it.
They wanted us to revisit it, but we were busy visiting other something else at that point.
You heard about the something else the Florida Supreme Court was busy with in our last episode. It was the contest lawsuit that the Gore team filed on November twenty seventh, after Catherine Harris certified the election for Bush.
Good evening. It was like an earthquake in Florida. This afternoon, the Florida Supreme Court did a life saving exercise on al Gore's campaign to be president.
This was the big one, the one that culminated on Friday, December eighth, in the Florida Court shocking both campaigns by ordering a last minute hand recount of every undervote in the state.
A manual recount of the so called under votes, and they wanted in every part of the states sixty four counties, more than forty three thousand votes.
Under votes, as you'll recall, refers to ballots that didn't register a vote for president, often because someone didn't punch through their ballot all the way. The Florida Court's ruling to manually review all these undervotes created instant uncertainty. With so many potential new votes, the race was anybody's game for the first time since election Day. The Bush team once again turned to the US Supreme Court, this time to file an emergency petition to halt the recount.
The Bush campaign responds instantly, preparing a broad legal counter attack, hoping to stop the court ordered recount before it even begins.
Ted Olsen, a Bush lawyer with years of experience, arguing before the Supreme Court thought it was obvious that the statewide manual recount could not be done fairly or quickly enough to make the electoral College deadline of December twelfth.
It couldn't possibly be done. The earlier recount procedures of just four counties had been moving along very slowly. There was no chance that a statewide recount could be done by the time of that deadline, And so my concern was that the Florida Supreme Court was either ignoring those deadlines or wasn't paying sufficient attention to the legal impact of those deadlines.
Bush's forty two page petition was filed at nine to eighteen pm on Friday, December eighth, mere hours after the Florida Supreme Court ruling was announced. When the petition reached the US Supreme Court, it fell to Justice Anthony Kennedy to decide what to do with it.
The first step an emergency request to Justice Anthony Kennedy, who was assigned to that region, asking him to block the recount while the Court considers whether to take the case.
Justice Kennedy was a Republican appointee with an independent streak, like Justice O'Connor, Kennedy was often a swing vote, though he was traditionally conservative on a lot of issues. He also liked to surprise people. Here again is Dahalia Liithwick.
I think the two of them were very much what I would call now kind of country club Republicans, the kind of eighties Republicans who were socially conservative but not rabid movement conservatives the way we've seen. But Kennedy as a swing justice was very different. Kennedy was a reliable vote for conservative outcomes, but on a handful of cases, most notably you know the gay marriage case that came about after Bush vy Corp. He would defect and vote with the left wing of the Court.
After the Bush lawyers filed their petition, Justice Kennedy wanted Chief Justice Ranquist to call conference as soon as possible so they could discuss the case.
Well, I was in Washington in my office, and I remember the Chief Justice called me and told me that we should have a conference.
That's former Supreme Court Justice John Paul Stevens. Stevens retired from the Court in twenty ten. I interviewed him in twenty nine nineteen, just a few months before he died at the age of ninety nine.
During the year I came down here to Florida and we had this place down here, and my wife and two daughters were planning to fly to Florida on that Saturdays.
I remember Stevens, who was one of the most liberal members of the Court, was skeptical that they needed to intervene in the Florida recount. The only justification for doing so would be if Bush, the petitioner, was at risk of suffering irreparable harm if the vote counting were allowed to go on. Stephens didn't see how that was possible, and he made his feelings clear to Chief Justice Reanquist on Friday evening.
I told him that the request for a stay did the same to have any merit because there was no showing a veryrreal injury, and I thought I would like to go ahead with my plans and my family.
Ranquist told Stephens that their conservative colleague Anthony Scalia, known to his friends as Nino, felt strongly that the petition should get a hearing right away.
He told me, as I remember that Nino thought the issue was a serious one and we ought to have a conference on it. So we should plan on meeting the following morning.
Justice stevens vacation was canceled. He wasn't going to Florida. Florida was coming to him. On the morning of Saturday, December ninth, county canvassing boards all over Florida pulled out their boxes of month old ballots, plugged in their vote counting machines, and started the process of separating out their undervotes.
You are looking right now at a live picture of the Leon County Library in Tallahassee, Florida. That's where a manual recount of some nine thousand, so called under votes from Miami Dade County is being counted.
At this hour, some counties had thousand of under votes account while others had just a few dozen. The judge overseeing the process gave them all until the following day at two pm to get the job done. If the recount could be completed by Sunday, December tenth, that would leave Florida two whole days to seat its twenty five
electors before the Electoral College deadline. As recounts got underway, representatives from the Bush and Gore campaigns fanned out across the state to monitor the proceedings.
Demonstrators from both sides channed outside public buildings as public servants count ballots on the inside.
Meanwhile, in Washington, the nine justices of the U. S. Supreme Court met in their conference room to discuss the Bush campaign's petition to stay the recount. It was obvious right away that the room was split along ideological lines, with Sandra Day O'Connor and Anthony Kennedy both joining the Conservatives in support of granting the stay. According to Evan Thomas, O'Connor was primarily motivated by desire to contain the chaos, for it got worse.
In the moment. She was trying to save the country from what she saw as a car crash. That if the recount went on in the state of Florida, it was possible that Gore would get ahead. Then you would have two sets of electors.
In this scenario, there would be two competing sets of electors, and the next president would be determined through partisan warfare in Congress. That was something O'Connor wanted to avoid. As the Supreme Court prepared to make the stay order, Public Justice Stevens was dismayed.
I thought addressing this issue in this way would hurt the Court's reputation. The Court generally avoids unnecessarily participating in political controversies, and I thought here it was entering into uncharged territory.
At two forty pm on Saturday, December tenth, news broke that the Court had grant Did the stay?
Hang on one second, David.
They're interrupted me now.
Bob Franken at the US Supreme Court in Washington has a bit of news. Bob, what are they saying up there?
Very big news. The US Supreme Court has agreed to put a stay on the recount in Florida.
There are a few hundred county election workers across this state rather bewildered right about now.
Most of the canvassing boards throughout Florida were still counting at this point.
I understand this is a live pixture from Cager County, Florida, where the recount has in fact stopped because of the order of the US Supreme Court.
If it says stop, I'm going to stop.
In fact, we're stopping right now until I see if we need to keep on stopping.
A few counties had finished, and a few had not yet managed to start. David Boys, one of Gore's most trusted attorneys, was at a sports bar called Andrews in Tallahassee when he saw the news on one of the TV screens, and I thought it was a mistake.
It just didn't seem possible that the United States Supreme Court was going to inter in this election to pick the winner, and to do so without even hearing argument. They're going to stop the votes from being counted.
Was obviously presented by Justice Kennedy, Anthony Kennedy, who's in charge of this area. I'm reading now it is ordered that the mandate of the Floria State Supreme Court is hereby stayed pending further.
It is another dramatic twist in this election saga, now thirty two days old, a saga that has left.
The campaigns, the candidates, and the.
Country on an extraordinary roller coaster ride.
That he is not over yet.
Ordinarily, a stay is a stopgap measure, a way for judges to freeze the situation in place until they have a chance to review it. But this stay was different because of the timeline hanging over the recount process. With the Electoral College deadline of December twelfth just three days away. The Supreme Court's order to halt the recount all but guaranteed that it could not be done in time. Even if the Court ended up deciding to edit resume.
Even the Vice President's battled hardened legal team appeared shocked at the set back.
There's no doubt that by delaying it, it has created a.
Very serious issue as.
To whether that count can fully be completed or not by December twelfth.
Though Gore was despondent when he heard about the stay, he remained true to his instincts as an institutionalist. In a message sent to his top aids on his BlackBerry, Gore wrote, please make sure that no one trashes the Supreme Court. But the real risk might have been the Supreme Court justices trashing each other. Justice Stevens was so unhappy with the majority's decision that he wrote a dissent that his three liberal colleagues signed onto Justice.
Stevens wrote that stopping this last chance recount may cause irreparable harm to Gore, and that it will inevitably cast a cloud on those.
Stephens argued that Bush's claim of a reparable harm was ludicrous, that if anyone should be worried about a reparable harm, it was Gore.
And it didn't seem to me that getting the right answer in a contested election could ever be an irreable harm. That's what you're trying to do in elections.
I asked Stevens to read part of his descent out loud.
Counting every legally cast vote cannot constitute irreable harm. On the other hand, there is a danger that a stay may cause irrebable harm to Respondence and more importantly, the public at large, because of the risks that the entry of the stay would be tantamount to a decision on the merits in favor of the applicants. Preventing the reaccount from being completed will inevitably cast a cloud on the legitimacy of the election, if it seems to me makes some sense.
Justice Scalia was so angered by Stephen's descent that he decided to write a rebuttal. Scalia argued that if Bush was right that he'd won the election, the counting of votes that are questionable legality would cast a cloud over his victory. Count first, and rule upon legality afterwards, Scalia wrote, is not a recipe for producing election results that have the public acceptance the democratic stability requires.
These are two justices that are going after each other with Hammer and Tom and Scalia is stating the Bush case far more strongly than the Bush lawyers stayed in their briefs.
It's impossible to overstate how unusually fast the Supreme Court was moving. Bush's petition had come in on December eighth, the stay had been granted December ninth, and now oral arguments have been scheduled for December eleventh.
At eleven a m total of one and a half hours for oral arguments. This is lightning speed, of course, by the Supreme Court.
The Court never likes to rush anything. In their usual schedule, months and months go by between when oral arguments are heard and when rulings are issued. That gestation period leaves time for opinions to be written and rewritten many times over. Occasionally it leaves enough time for justices to change their minds. With the Electoral College deadline looming, such a leisurely approach
wasn't possible. The Supreme Court was on a violently compressed schedule, and that meant the Bush and Gore lawyers were too. They had just over twenty four hours to write and submit their briefs. David Boyce led the charge on the Gore side.
This did not come down to nuances of federal law. It came down to what had happened in Florida, and I knew that barn anybody.
Boys's central argument was that the Florida Supreme Court wasn't making new laws, they were just interpreting ones that were already on the books. The Bush team insisted this was wrong, that in fact, the Florida Supreme Court had changed the rules of the election in the middle of the game, and that in doing so they had usurped the power of the state legislature. But the last part of the Bush brief also included a different argument, one based on
the equal protection clause of the Fourteenth Amendment. Here again is Bush lawyer ted Olsen.
The elasticity of the rules and the procedures put the power in the vote counters. Every time they change the rules, they could put their thumb on the scale to make it come out a certain way. When you have almost a tie in terms of the numbers, all you have to do is change a certain amount of those votes to change the outcome.
It was hardly a secret that the manual recounts were being conducted under different standards in different counties. Some places were counting dimple chads, while others were throwing them out. The Bush argument was that this inconsistent application of ballot standards was itself unconstitutional.
This is an ABC News special report.
Hello again, everybody on Peter Jennings at ABC News headquarters. And there is the US Supreme Court with its activist outside, both for the Democrats and the Republicans today.
The oral arguments in Bush v. Gore were scheduled to start at eleven am on Monday, December eleventh, a.
Lawyers for al Gore and George W. Bush head into the US Supreme Court in Washington.
To argue the case in about two minutes.
The second oral argument in ten days involving the two thousand presidential election as scheduled to get under way.
Dallia Lithwick had only recently started attending oral arguments, but she already knew the drill.
You'd sort of line up in the court. I remember they line you up a long time before arguments start, and they march you in and they take away your everything but your pen and your notepad.
Oddly, Lithwick and most of the other reporters were seated in such a way that they couldn't actually see the justices as they spoke from the bench. Instead they just heard their voices.
Well, here argument now in number nine forty nine, George W. Bush and Richard Cheney versus Albert Gore at al.
Beyond the first couple of rows, everybody's views obstructed, everybody sitting behind curtains and columns, all the reporters. And there was at the time somebody from the press office at the Court who would get hand signals so you would know for Justice Scalias speaking six, and that was how you knew who was talking.
The air in the room was stifling as Lithwick and her colleagues tried to make out what was happening.
My memory of it is it was, I mean almost hanging from the lamps, like it was so packed and so hot, and that there was a feeling, at least in the press section of the room that we were watching history. You don't often have a sense that you're going to be telling, you know, your grandkids like I was there. I was in the room.
Ted Olsen remembers the atmosphere as one of spectacle and high stakes.
The entire world was watching. The Supreme Court was surrounded by the satellite trucks of the various broadcast networks. The court was filled with political figures, members of the United States Senate, journalists and people all over the world were watching and listening.
Despite having argued before the Supreme Court on thirteen other occasions, Olsen found that he was not immune to the pressure.
You cannot imagine a more tense, pressure packed moment than standing up in front of the all of those people and the nine justices, with all of that at stake, and I think all of us felt. For God's sakes, I hope I can get these words out. One of the lawyers made a mistake of three times, I think he did, called the justices by the wrong.
Name, Justice Bar.
What I'm saying is is then I'm just a suitor.
You better cut that out.
I will now give up.
Your adrenaline is going to be pumping through you. So anybody says, are you nervous, of course you're nervous. And if you're not nervous, you're not a sentient human being or a lawyer. So you have to focus on what you're saying. You have to focus on what the justices are saying. When they interrupt you, and they interrupt you constantly.
No, I don't think.
It's necessary a reliance on you really are not relying on those.
Well, I think those cases support the argument.
But as we said, if you got to choose one version of the word legislature or the.
Other, I think in different contexts, it's not necessarily necessarily the case. And certainly it is.
True that legislatures.
As the hearing were on the main thing, anyone was listening for recluse as to how the two swing justices O'Connor and Kennedy were thinking about the case. O'Connors, how the baffled that canvassing boards wouldn't just use ballot standards that were based on the instructions that voters received an election day.
Well, why isn't this standard the one that voters are instructed to follow for goodness sake? So, I mean, it couldn't be clear. Why don't we go.
There was something else bothering O'Connor to the Florida Supreme Court had not responded in any way to the Supreme Court's remand and request for clarification on their earlier ruling.
And I did not find a really response by the Florida Supreme Court to this Court's remand in the case a week ago, it just seemed to kind of bypass sit and assume that all those changes in deadlines were just fine, and they'd go ahead and adhere to them.
And I found out troublesome, your honor, if I could.
It was about nineteen minutes into oral arguments when the issue of equal protection entered the discussion. But it wasn't Ted Olson who brought it up. It was Justice Kennedy.
Well, and I thought your point was that the process is being conducted in violation of the equal protection clause, and is its standards and.
The due process clause, and what we know is now Kennedy latched onto the issue and tried to get answers from David Boys, But because the equal protection argument had been such a small part of the Bush brief, Boys had spent most of his time preparing to talk about other aspects of the case.
I think there is a uniform standard. The standard is whether or not the intent of the voter is reflected by the ballot. That is the uniform standard that throughout.
Very general it runs throughout the law. Even the dog knows the difference in being stumbled over and being kicked me know it now? You would say that, from the standpoint of equal protection clause, could each county give their own interpretation to what intent means, so long as they are in good faith and with some reasonable basis finding intent?
I think could that vary from county to county.
I think it can vary from individual to individual.
The sudden focus on equal protection was surprising and those Kennedy who brought it up. Other justices seem to share his concern, and not just the conservative ones either.
And why this question of equal protection for all Florida voters keeps coming up.
Because Justice Sooner was saying, I'm troubled by this.
Justice Kennedy is troubled by this.
Justice Bryer is troubled by this now.
So I think that was something that really.
There was something weird about the equal protection claim. Though the Bush team was applying it narrowly to the problem of inconsistent hand recounts in Florida, its premise was that there was something wrong with the decentralized way in which all American elections are carried out. Taking the argument to its logical conclusion, the country's entire electoral sism them was
one big violation of equal protection in any event. By the time oral arguments came to a close, it was clear that the Court would be treating the equal protection argument as much more than a sideshow. But how exactly they would respond to it was anyone's guess. The nine justices met in their conference room to figure out who
stood where. Stevens and Ruth Bader Ginsburg felt strongly that the Court should allow the recount to resume, but Kennedy was still focused on Bush's equal protection argument, and it appeared that two of his more liberal colleagues, Stephen Bryer and David Souter, were hung up on it as well.
And they both indicated that their feeling it was a possible violation. And I had never been able to understand.
Why Stevens tried to propose a compromise. If most of his colleagues agreed that the varying standards for conducting recounts were a violation of equal protection, why not send the case back to the Florida Supreme Court and asked them to come up with one on statewide standard for judging voter intent. That way, the recount could resume and proceed fairly. But the conservatives on the Court didn't think that prolonging the process was an option. It was simply too late.
The deadline for ceding Florida's electors was December twelfth. That was the very next day. Justice O'Connor in particular, was worried that if the case went back to the Florida Supreme Court now, the dispute over electors could enter truly uncharted territory.
Justice O'Connor said, this is a mess. We got to stop it now because if we don't stop it now, it's going to go on and on, and it's going to get worse and Bush is going to win in the end.
Anyways, not everyone thought the situation was so dire. Stevens, Briar, Suitor, and Ginsburg all believed that something could still be done in Florida, or at least they believed that it wasn't the Supreme Court's job to make that call. Why did you think there was time? And they didn't think there was time.
Well, I didn't really feel I had the capacity to decide that issue. But if the Florida Supreme Court thought it could be worked out, which should let them be given a try.
What ensued was a tug of war, with some members of the Court planting their feet and trying to pull their colleagues over to their side. The hope was to come up with a ruling that wouldn't divide the Court on a partisan basis. To that end, Kennedy and O'Connor decided to collaborate on an opinion reflecting whatever shreds of consensus were available in it. They would argue that the statewide recount was a violation of equal protection, a position
that seven of the justices seemed to agree with. The problem was that two of those seven, Brier and Suitor, thought the state wide recount could still be revived under a uniform ballot standard, while the other five thought the game was over. That meant the justices were still divided five to four on whether the recount had to end. Compromise would have been nice, but it wasn't.
Necessary, okay. Also, standing by the moment.
Of truth, it is the moment of truth.
The Supreme Court may use this moment to determine who is the next president of the United States.
There are many ways this decision could go.
The Supreme Court handed down its ruling in Bush v. Gore at ten pm on December twelfth, the same day as the deadline for seating Florida's electors Saturday. The Court printed copies of the sixty five page decision and stacked them on a table in the press office for the taking. Journalists grab copies and sprinted outside to waiting TV cameras.
The Supreme Court decision from Florida is now out.
Let's go straight to the court because ABC's Jackie Judd and Jeffrey Tubman are standing by.
The Peter.
If you can, I will, let me give you the typical Supreme Court opinion starts with the summary, helpful guide to relevant constitutional questions and how they've been decided. But because the Court's ruling on Bush v. Gore had been and so quickly, there was no time for that kind of sign posting. That made interpreting the decision rather difficult.
So we're going to have to keep shifting through this decision. It is extremely complicated, with all these concurrences and descents and.
The phrasing of it.
It's very badly written, to tell you the truth, and it sounds Parnie.
Let's work through this as carefully as we can.
But let me get to the bottom line here the judgment of the Supreme Court of Florida is reversed.
The majority opinion was signed procurium, meaning by the court. Usually, this was a sign that a decision was uncontroversial, and it was meant to indicate that the Court was speaking in one voice. But this opinion was not so straightforward. On the one hand, it said that seven justices agreed that the statewide recount was a violation of equal protection.
But the far more consequential takeaway from the opinion was that a majority of the court, five out of the nine justices, thought the recount had to be shut down no matter what.
And it seems that this really clearly is a victory for Governor Bush.
I read this to say, here's the bottom line.
We've reversed the Supreme Court opinion of Florida. This election is over.
According to Gore lawyer David Boyce, some of his colleagues initially thought that the Court's decision was not necessarily the end of the line.
There was still some hope among some members of the Gore camp that we could continue the fight in Florida, that we could try to get the vote count we started. But at one point al Gore asked me what I thought, and I said, it was wrong to shoot you, but you're still dead. There's no coming back from this.
And in the end, what we had was a collision between the calendar and the fourteenth Amendment of the Constitution guaranteeing equal protection under the law.
As someone who teaches these issues, I would say this is probably the most significant decision in thirty years.
We've had an appeal, we've taken that appeal.
There is no appeal from the United States Supreme Court.
The idea of a conservative majority rallying around equal protection seemed absurd many liberal court watchers. Equal protection was maybe the most revered legal tenet of progressives, the centerpiece of landmark civil rights decisions like Brown v. Board of Education and Loving v. Virginia. Justice Ginsberg, who pioneered the use of equal protection arguments in fighting sex discrimination, was particularly horrified.
While drafting her dissenting opinion, Ginsburg included a footnote saying that if there was any equal protection violation at work in Florida, it was the disenfranchisement of African American voters. She was referencing reports of voter suppression, including efforts to purge felons from Florida's voter roles. Justice Scalia read the footnote in a draft of Ginsburg's assent and accused her
of using al Sharpton tactics. Ginsburg gruented and took it out. Meanwhile, Justice Stevens decided to articulate his frustration in a descent of his own. Here he is reading from the last paragraph.
Time will one day heal the wound to that conference that will be inflicted by today's decision. One thing, however, is certain, although it will remain 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 a nation's confidence in the judge as an impartial guardian of the rule of law. I respectively dissent. No, that's true. I think I hit it right out of the head.
There was one more important and unusual thing about the Court's decision in Bush v.
Gore.
It didn't set any precedent.
The justices, in a highly unusual move, said their ruling is limited to the present circumstances only, meaning.
Justice O'Connor was always cognizant of downstream effects of the Court's actions, and during the drafting process in Bush v. Gore, she told Kennedy that she wanted it to be clear that the Court was only responding to the specific facts of the case at hand, and so they added a sentence stipulating just that and acknowledging that the problem of
equal protection and election processes generally presents many complexities. To critics, it sounded like the majority was basically admitting that the equal protection argument did not deserve to be taken seriously. Here again is Dahalialithwick.
I do remember absolutely being shocked by the Court having to explicitly say in the manner of mission impossible, like this is going to disappear in a poof of smoke in ten seconds. So read it quickly because it doesn't stand for everything. For me, that was anathema to what the court does. You know, the Court sets out clear lasting precedent to guide the next case. It doesn't say, like, dudes, we were totally painted into a corner and so we're going to make some stuff up and good luck. And
so I remember that being to me. The thing that grabbed me by the throw was they don't even have the courage of their own convictions, much less you know that the ability to resolve this in any binding, precedential way.
Peter Tonight al Gore's age describe him as calm, at peace with himself and his decision, and very focused on his task tonight to do his part to unite the country.
On December thirteenth, thirty six days after election day, al Gore gave a televised address in which he conceded the two thousand election for a second and final time.
Good evening.
Just moments ago, I spoke with George W. Bush and congratulated him on becoming the forty third president of the United States, and I promised him that I wouldn't call him back this time. Now the US Supreme Court has spoken, let there be no doubt. While I strongly disagree with the Court's decision, I accept it. I accept the finality of this outcome, which will be ratified next Monday in the Electoral College.
Later, George W. Bush offered a few conciliatory remarks of his own.
Vice President Gore and I put our hearts and hopes into our campaigns. We shared some emotions, so I understand how difficult this moment must be for Vice President Gore and his family.
The only thing left to do was make it official. On December eighteenth, Florida's presidential electors gathered at the State House in Tallahassee. As expected, all twenty five Republican electors voted for George W. Bush, while his brother Jeb looked on.
Thank you for your attendance and cooperation and fulfilling this awesome duty.
This meeting of the presidential electors is now adjourned.
Thank you all very much.
God blessed.
In Washington the task of officially presiding over the Electoral College TWI felt in none other than al Gore, whose position as vice president also made him the president of the Senate.
The whole number of the electors appointed to vote for President of the United States as well, the.
Third vice president in history to preside over the certification of his own defeat.
George W.
Bush of the State of Texas has received for President of the United States two hundred and seventy one v. Al Gore of the State of Tennessee has received two hundred and sixty six votes. May God bless our new president and our new Vice President, and may God bless the United States of America.
When the election was finally over and Bush was inaugurated as president, it seemed like the stage was set for Sandrad O'Connor to announce that she was stepping down from the court, but she didn't. According to Devin Thomas, she felt that her role in putting Bush in the White House made retirement untenable.
The standard wisdom is that she voted for Bush so that she could retire because she wanted to retire, because it sounded like that's what they wanted to do based on that dinner party outburst. But in fact the opposite is true. Because she voted for Bush, she knew that she could not retire. It would look like the fix was in that She knew that it would look like she voted for Bush so that she could retire. So she said to her family, look, no white House events.
We're not gonna hang around with a Bush family. We're not retiring. And she didn't, not for another five years until her husband's Alzheimer's was so bad she felt she had to retire.
As John's Alzheimer's worsened, O'Connor often brought him to the court with her. He sat on the couch in her office reading the newspaper while she worked. When he occasionally wandered off, Supreme Court guards were always around to keep an eye on him. Meanwhile, the Supreme Court's docket filled up with cases that touched on Bush administration policy. These were major cases about affirmative action, the right to die,
the rights of prisoners at Guantanama Bay. And if anyone still believed that the two thousand election had been low stakes, the string of decisions that came out of the Supreme Court in its aftermath served as a reminder of just how much had been on the line. When O'Connor finally retired in two thousand and five, she was replaced with Samuel Alito, a relentlessly conservative justice whose arrival shifted the
ideological balance of the court. In private, O'Connor expressed deep frustration with Alito, and she watched with disappointment as the court tilted away from her doctrine on abortion rights, affirmative action, and a host of other issues.
She was so full of regret that she, you know, immediately on her retirement and being replaced by Alito and watching all of the doctrine that she had had her thumbprint on got erased. Within like two years. You know, every place in which she had been the decider goes the other way. And I think she really did feel as though she couldn't say it out loud, but that she had done something like catastrophically bad for the country
that she didn't know how to make reparations for. And I think, much more so than anyone else, she really carried that around with her.
In twenty thirteen, for the first time ever, O'Connor publicly expressed second thoughts about the ruling in Bush v.
Gore.
The Supreme Court probably added to the problem. At the end of the day, she told the Chicago Tribune. Maybe she said the Court shouldn't have even taken the case in the first place. Five years later, Justice O'Connor announced that she was suffering from dementia, most likely Alzheimer's, and she retired from public life. She died in twenty twenty
three at the age of ninety three. In the wake of al Gore's concession, a handful of news organizations went back to Florida's ballots and tried to figure out whether the right person had been elected president.
The count of more than sixty one thousand punch carts optical scan even handwritten votes tallied by a team from the Miami Herald, USA Today and a private accounting firm.
The first major result was released by a consortium of news papers that included USA Today and the Miami Herald. It came out in April two thousand and one, about two and a half months into George W. Bush's presidency. The study gamed out what would have happened if the recount mandated by the Florida Supreme Court had been allowed to continue. It looked at possible outcomes under four different ballot standards, ranging from the most lenient to the most strict, under vote ballots.
Those now famous hanging, dimpled and pregnant chads.
Ironically, the study found that Gore would have only won under the strictest standard, and even then the margin would have only been three votes.
So Gore wins using a strict vote counting method, he did not support Bush wins using a more liberal method he opposed.
A second major post mortem of the election came out just after its first anniversary. This one was the product of a million dollar effort that included The New York Times, The Washington Post, The Wall Street Journal, The Saint Petersburg Times and the Palm Beach Post Together they commissioned a non partisan research institute at the University of Chicago to spend ten months going through the one hundred and seventy five thousand undervotes and over votes from Florida.
Trained coders, often operating in teams, viewed but did not touch, disputed ballots and wrote down what they saw.
According to that study, if every undervote and over vote in Florida had been examined by hand, Gore would have won the state by a slim margin.
Under those circumstances, Gore would have gained to a plus one hundred and seventy one largely.
But as the news organizations themselves acknowledged, this was neither here nor there. Though it may have been true in theory, there had pretty much never been a scenario in which all of Florida's undervotes and overvotes were going to be counted. If you imagine the thirty six days after election day as a choose your own adventure, there was just no fork in the road when that was a serious possibility.
Even before it was published, an LA Times editor was quoted saying that it was entirely possible that most readers would look at the report and yawn. The Saint Petersburg Time Times asked whether anyone other than political junkies would care. In The Washington Post, media critic Howard Kurtz said the recount now felt like some distant Civil war battle. There was good reason to be skeptical about the public's appetite
for relitigating the election. Maybe you've already done the math in your head, But the first anniversary of November two thousand was November two thousand and one, So two months after the September eleventh attacks.
Try to remember the kind of September we just had. What consumed us last December is a paragraph for history now.
A reason George Bush's approval rating was close to ninety percent. A poll published in early November showed that if the election was held again, Bush would beat Gore nationally by twenty six points. Even Gore's former campaign chairman, Bill Day said that anyone who was still speculating what the election
results was wasting their breath. On the editorial page of the Tampa Tribune, both parties received praise for showing restraint at a time when the core temperature of the former World Trade Center still hovered near one thousand degrees in subsequent years. Whenever anyone asked Justice Antonin Scalia about the Court's decision in Bush v. Gore, he would respond, get
over it. In his book on Justice O'Connor, Evan Thomas reported that Scalia privately referred to the equal protection argument used to end the Florida recount as a piece of shit. Fiasco is a production of Prolog Projects, and it's distributed by Pushkin Industries. The show is produced by Andrew Parsons, Madeline kaplan Ula Culpa, and me Leon Nathan. Our script editor was Daniel Riley. Our editorial consultant was Camilla Hammer,
and we received additional editorial support from Lisa Chase. Our music and score are by Nick Silvester of god Mode, with additional music from Alexis Quadrado. Our theme song is by Spatial Relations. Our artwork is by Teddy Blanks at Chips and y Audio, mixed by Rob Buyers, Michael Raphael and Johnny Vince Evans. A final Final V two special thanks to Luminary for a list of books, articles, and documentaries that we relied on in our research. Click the
link in the show notes. Thanks to c SPAN, NBC News Archive, CNN and Channel twenty and Palm Beach for the archival material you heard in today's show. Thanks for listening.
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