Bush v. Gore: Episode 6 – No Precedent

In the season finale: How the 2000 presidential election was distilled and decided in a case called Bush v. Gore.

For a full list of sources, check out the Fiasco website.

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Episode Transcript

Speaker 1 (00:16):
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,

(00:36):
or visit Pushkin dot fm slash Plus. Now onto the episode.
Previously on Fiasco.

Speaker 2 (00:47):
Voce wins one round, Gore wins the next.

Speaker 3 (00:49):
It is a legal slugfest.

Speaker 2 (00:51):
We've gone from protest certification last night and now contest.

Speaker 4 (00:55):
Florida's ticking clock becomes a second adversary. December twelfth is
key the dave Florida certifies it's electors.

Speaker 5 (01:02):
The Republican controlled state legislature scheduled a special session to
name electors just in case the state Supreme Court rules
against Cavador Borsch.

Speaker 3 (01:11):
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.

Speaker 6 (01:23):
If you do not like political chaos, it's about time
to head for the storm.

Speaker 1 (01:27):
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.

Speaker 7 (01:47):
Well here argument now number ninety nine twelve fifty seven
Carol M. Browner VERSUS American Trucking Association.

Speaker 1 (01:53):
Where she and the other eight justices were scheduled to
hear oral arguments in a case involving the Clean Water Act.

Speaker 8 (01:59):
Now why would Congress want that advice on economic and
energy efficts.

Speaker 1 (02:06):
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.

Speaker 9 (02:14):
On election day, Sandra O'Connor spoke to her husband's neurologist
for the first time about John's Alzheimer's.

Speaker 1 (02:26):
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,

(02:47):
Justice O'Connor was trying to get a handle on her
husband's diagnosis.

Speaker 9 (02:50):
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

(03:10):
him time?

Speaker 1 (03:11):
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.

Speaker 9 (03:32):
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.

Speaker 1 (03:41):
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.

Speaker 9 (03:50):
According to her son Scott, they were at least thinking
about retiring if there was a Republican president if Bush won.

Speaker 10 (04:01):
Good evening, President Reagan today named a woman to the
Supreme Court and another barrier fell.

Speaker 1 (04:07):
O'Connor had been a justice for nineteen years. She was
the first woman ever nominated at the Supreme Court.

Speaker 11 (04:13):
She is truly a person for all seasons, possessing those
unique qualities of temperament, fairness, intellectual capacity, and devotion to
the public.

Speaker 1 (04:22):
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.

Speaker 12 (04:37):
When Senator O'Connor was on the Court for many years,
she simply was the swing justice at the Court.

Speaker 1 (04:43):
This is Dalia Lithwick, who writes about the law for Slate.
Lithwick started covering the Supreme Court in nineteen ninety nine.

Speaker 12 (04:50):
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.

Speaker 1 (05:06):
According to Lithwick, O'Connor didn't get a lot of respect
from legal.

Speaker 12 (05:09):
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

(05:31):
on either side and say, what's going to fix this.

Speaker 1 (05:34):
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.

Speaker 9 (05:42):
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.

Speaker 1 (06:01):
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.

Speaker 8 (06:12):
Call to make. CNN announces that we call Florida in
the Al Gore column.

Speaker 6 (06:18):
This is a roadblock the size of a boulder to
George W.

Speaker 10 (06:21):
Bush's path to.

Speaker 1 (06:22):
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

(06:42):
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

(07:06):
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

(07:26):
she told her son he was being ridiculous. I'm leon
Neefok from Prologue Projects and Pushkin Industries. This is fiasco
Bush v.

Speaker 13 (07:40):
Gore, the lawyers for hold Gore and George W. Bush,
pedant of the US Supreme Court.

Speaker 9 (07:47):
She was trying to save the country from what she
saw as a car crack.

Speaker 1 (07:51):
Just as probably the most significant decision in thirty years.

Speaker 2 (07:55):
You cannot imagine a more chance, pressure packed moment.

Speaker 1 (08:01):
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.

(08:24):
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.

Speaker 6 (08:42):
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.

Speaker 1 (08:52):
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.

Speaker 10 (09:06):
Here's the latest.

Speaker 14 (09:07):
Florida's highest state court has blocked the Secretary of State certain.

Speaker 13 (09:12):
What it basically means in an opinion that justice has
reached unanimously is that the hand counts continue, and the
hand counts count.

Speaker 2 (09:20):
But the justice.

Speaker 1 (09:20):
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.

Speaker 15 (09:32):
To, the U. S.

Speaker 16 (09:33):
Supreme Court.

Speaker 17 (09:34):
Bush is arguing that the state court overreached its authority
and rewrote election law in a way that violates the
US Constitution.

Speaker 1 (09:42):
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.

Speaker 6 (10:05):
A huge legal gamble pays off for the Bush campaign.

Speaker 1 (10:08):
Oral arguments were scheduled for December first, The battle for.

Speaker 5 (10:11):
The White House goes before the US Supreme Court, Bush gore,
and a day for the history books.

Speaker 1 (10:18):
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

(10:40):
want to drop the case, and the Supreme Court kept
it on the docket.

Speaker 7 (10:44):
We'll hear i arguement this morning in number eight thirty
six George W. Bush versus the Palm Beach County Canvas.

Speaker 1 (10:51):
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.

Speaker 4 (11:02):
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.

Speaker 1 (11:10):
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.

Speaker 18 (11:26):
I would emphasize that what the Florida Supreme Court did
is basically essentially say rewriting the statute, were changing it.

Speaker 1 (11:35):
When they issued their ruing three days after oral arguments,
the Supreme Court showed a reluctance to interfere with the
proceedings in Florida.

Speaker 19 (11:43):
The case is submitted.

Speaker 20 (11:45):
The Supreme Court's historic hearing ended with a less than
historic decision.

Speaker 1 (11:50):
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.

Speaker 19 (12:06):
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.

Speaker 1 (12:21):
Instead, the Supreme Court was asking Wells and his colleagues
to go back to the case and take another stab
at it.

Speaker 19 (12:26):
They wanted us to revisit it, but we were busy
visiting other something else at that point.

Speaker 1 (12:35):
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.

Speaker 10 (12:47):
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.

Speaker 1 (12:55):
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.

Speaker 10 (13:04):
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.

Speaker 1 (13:13):
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

(13:34):
once again turned to the US Supreme Court, this time
to file an emergency petition to halt the recount.

Speaker 6 (13:40):
The Bush campaign responds instantly, preparing a broad legal counter attack,
hoping to stop the court ordered recount before it even begins.

Speaker 1 (13:48):
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.

Speaker 2 (14:00):
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

(14:20):
deadlines or wasn't paying sufficient attention to the legal impact
of those deadlines.

Speaker 1 (14:28):
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.

Speaker 6 (14:43):
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.

Speaker 1 (14:52):
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.

Speaker 12 (15:06):
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

(15:28):
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.

Speaker 1 (15:42):
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.

Speaker 21 (15:50):
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.

Speaker 1 (16:02):
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.

Speaker 21 (16:14):
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.

Speaker 1 (16:27):
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

(16:47):
on Friday evening.

Speaker 21 (16:49):
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.

Speaker 1 (17:04):
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.

Speaker 21 (17:12):
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.

Speaker 1 (17:24):
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

(17:47):
their boxes of month old ballots, plugged in their vote
counting machines, and started the process of separating out their undervotes.

Speaker 22 (17:54):
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.

Speaker 1 (18:07):
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,

(18:30):
representatives from the Bush and Gore campaigns fanned out across
the state to monitor the proceedings.

Speaker 17 (18:38):
Demonstrators from both sides channed outside public buildings as public
servants count ballots on the inside.

Speaker 1 (18:45):
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,

(19:06):
O'Connor was primarily motivated by desire to contain the chaos,
for it got worse.

Speaker 9 (19:11):
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.

Speaker 1 (19:29):
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.

Speaker 21 (19:45):
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.

Speaker 1 (20:05):
At two forty pm on Saturday, December tenth, news broke
that the Court had grant Did the stay?

Speaker 23 (20:10):
Hang on one second, David.

Speaker 6 (20:11):
They're interrupted me now.

Speaker 13 (20:13):
Bob Franken at the US Supreme Court in Washington has
a bit of news. Bob, what are they saying up there?

Speaker 4 (20:18):
Very big news. The US Supreme Court has agreed to
put a stay on the recount in Florida.

Speaker 3 (20:24):
There are a few hundred county election workers across this
state rather bewildered right about now.

Speaker 1 (20:30):
Most of the canvassing boards throughout Florida were still counting
at this point.

Speaker 2 (20:33):
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.

Speaker 1 (20:42):
If it says stop, I'm going to stop.

Speaker 24 (20:43):
In fact, we're stopping right now until I see if
we need to keep on stopping.

Speaker 1 (20:48):
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.

Speaker 15 (21:02):
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.

Speaker 4 (21:19):
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.

Speaker 17 (21:31):
It is another dramatic twist in this election saga, now
thirty two days old, a saga that has left.

Speaker 2 (21:36):
The campaigns, the candidates, and the.

Speaker 18 (21:39):
Country on an extraordinary roller coaster ride.

Speaker 2 (21:42):
That he is not over yet.

Speaker 1 (21:45):
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

(22:07):
if the Court ended up deciding to edit resume.

Speaker 13 (22:10):
Even the Vice President's battled hardened legal team appeared shocked
at the set back.

Speaker 25 (22:14):
There's no doubt that by delaying it, it has created a.

Speaker 17 (22:18):
Very serious issue as.

Speaker 25 (22:20):
To whether that count can fully be completed or not
by December twelfth.

Speaker 1 (22:25):
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

(22:47):
that his three liberal colleagues signed onto Justice.

Speaker 20 (22:50):
Stevens wrote that stopping this last chance recount may cause
irreparable harm to Gore, and that it will inevitably cast
a cloud on those.

Speaker 1 (22:58):
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.

Speaker 21 (23:06):
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.

Speaker 1 (23:15):
I asked Stevens to read part of his descent out loud.

Speaker 21 (23:18):
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

(23:42):
from being completed will inevitably cast a cloud on the
legitimacy of the election, if it seems to me makes
some sense.

Speaker 1 (23:54):
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.

Speaker 26 (24:15):
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.

Speaker 1 (24:27):
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.

Speaker 4 (24:39):
At eleven a m total of one and a half
hours for oral arguments. This is lightning speed, of course,
by the Supreme Court.

Speaker 1 (24:44):
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

(25:05):
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.

Speaker 15 (25:19):
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.

Speaker 1 (25:34):
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

(25:56):
the equal protection clause of the Fourteenth Amendment. Here again
is Bush lawyer ted Olsen.

Speaker 2 (26:02):
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

(26:23):
to change the outcome.

Speaker 1 (26:26):
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.

Speaker 14 (26:46):
This is an ABC News special report.

Speaker 10 (26:52):
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.

Speaker 1 (27:01):
The oral arguments in Bush v. Gore were scheduled to
start at eleven am on Monday, December eleventh, a.

Speaker 13 (27:07):
Lawyers for al Gore and George W. Bush head into
the US Supreme Court in Washington.

Speaker 27 (27:12):
To argue the case in about two minutes.

Speaker 20 (27:14):
The second oral argument in ten days involving the two
thousand presidential election as scheduled to get under way.

Speaker 1 (27:23):
Dallia Lithwick had only recently started attending oral arguments, but
she already knew the drill.

Speaker 12 (27:28):
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.

Speaker 1 (27:38):
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.

Speaker 7 (27:50):
Well, here argument now in number nine forty nine, George W.
Bush and Richard Cheney versus Albert Gore at al.

Speaker 12 (27:58):
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.

Speaker 1 (28:18):
The air in the room was stifling as Lithwick and
her colleagues tried to make out what was happening.

Speaker 12 (28:23):
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.

Speaker 1 (28:46):
Ted Olsen remembers the atmosphere as one of spectacle and
high stakes.

Speaker 2 (28:50):
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.

Speaker 1 (29:07):
Despite having argued before the Supreme Court on thirteen other occasions,
Olsen found that he was not immune to the pressure.

Speaker 2 (29:14):
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

(29:34):
he did, called the justices by the wrong.

Speaker 18 (29:37):
Name, Justice Bar.

Speaker 5 (29:39):
What I'm saying is is then I'm just a suitor.

Speaker 1 (29:41):
You better cut that out.

Speaker 4 (29:43):
I will now give up.

Speaker 2 (29:45):
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.

Speaker 18 (30:04):
No, I don't think.

Speaker 23 (30:04):
It's necessary a reliance on you really are not relying
on those.

Speaker 18 (30:08):
Well, I think those cases support the argument.

Speaker 21 (30:10):
But as we said, if you got to choose one
version of the word legislature or the.

Speaker 18 (30:14):
Other, I think in different contexts, it's not necessarily necessarily
the case. And certainly it is.

Speaker 23 (30:19):
True that legislatures.

Speaker 1 (30:21):
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.

Speaker 8 (30:37):
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.

Speaker 1 (30:47):
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.

Speaker 8 (30:56):
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.

Speaker 25 (31:16):
And I found out troublesome, your honor, if I could.

Speaker 1 (31:20):
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.

Speaker 23 (31:29):
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.

Speaker 18 (31:36):
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.

Speaker 25 (31:50):
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.

Speaker 23 (32:00):
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?

Speaker 19 (32:22):
I think could that vary from county to county.

Speaker 25 (32:24):
I think it can vary from individual to individual.

Speaker 1 (32:28):
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.

Speaker 10 (32:37):
And why this question of equal protection for all Florida
voters keeps coming up.

Speaker 26 (32:41):
Because Justice Sooner was saying, I'm troubled by this.

Speaker 2 (32:44):
Justice Kennedy is troubled by this.

Speaker 4 (32:46):
Justice Bryer is troubled by this now.

Speaker 18 (32:48):
So I think that was something that really.

Speaker 1 (32:51):
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

(33:15):
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

(33:37):
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.

Speaker 21 (33:49):
And they both indicated that their feeling it was a
possible violation. And I had never been able to understand.

Speaker 1 (33:56):
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.

(34:16):
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.

Speaker 9 (34:37):
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.

Speaker 1 (34:45):
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.

Speaker 21 (35:02):
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.

Speaker 1 (35:14):
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

(35:36):
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.

(35:59):
Compromise would have been nice, but it wasn't.

Speaker 14 (36:01):
Necessary, okay. Also, standing by the moment.

Speaker 4 (36:18):
Of truth, it is the moment of truth.

Speaker 25 (36:19):
The Supreme Court may use this moment to determine who
is the next president of the United States.

Speaker 15 (36:24):
There are many ways this decision could go.

Speaker 1 (36:27):
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.

Speaker 13 (36:45):
The Supreme Court decision from Florida is now out.

Speaker 10 (36:47):
Let's go straight to the court because ABC's Jackie Judd
and Jeffrey Tubman are standing by.

Speaker 6 (36:54):
The Peter.

Speaker 1 (36:58):
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.

Speaker 27 (37:16):
So we're going to have to keep shifting through this decision.
It is extremely complicated, with all these concurrences and descents and.

Speaker 4 (37:23):
The phrasing of it.

Speaker 26 (37:24):
It's very badly written, to tell you the truth, and
it sounds Parnie.

Speaker 10 (37:27):
Let's work through this as carefully as we can.

Speaker 16 (37:30):
But let me get to the bottom line here the
judgment of the Supreme Court of Florida is reversed.

Speaker 1 (37:36):
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.

(37:56):
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.

Speaker 24 (38:05):
And it seems that this really clearly is a victory
for Governor Bush.

Speaker 21 (38:10):
I read this to say, here's the bottom line.

Speaker 13 (38:12):
We've reversed the Supreme Court opinion of Florida. This election
is over.

Speaker 1 (38:16):
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.

Speaker 15 (38:23):
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.

Speaker 5 (38:44):
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.

Speaker 1 (38:53):
As someone who teaches these issues, I would say this
is probably the most significant decision in thirty years.

Speaker 14 (38:58):
We've had an appeal, we've taken that appeal.

Speaker 3 (39:01):
There is no appeal from the United States Supreme Court.

Speaker 1 (39:06):
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.

(39:27):
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

(39:47):
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.

Speaker 21 (40:00):
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

(40:24):
of the rule of law. I respectively dissent. No, that's true.
I think I hit it right out of the head.

Speaker 1 (40:34):
There was one more important and unusual thing about the
Court's decision in Bush v.

Speaker 13 (40:38):
Gore.

Speaker 1 (40:39):
It didn't set any precedent.

Speaker 20 (40:41):
The justices, in a highly unusual move, said their ruling
is limited to the present circumstances only, meaning.

Speaker 1 (40:48):
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,

(41:12):
it sounded like the majority was basically admitting that the
equal protection argument did not deserve to be taken seriously.
Here again is Dahalialithwick.

Speaker 12 (41:20):
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

(41:42):
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.

Speaker 17 (42:10):
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.

Speaker 1 (42:21):
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.

Speaker 4 (42:31):
Good evening.

Speaker 16 (42:32):
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

(42:55):
of this outcome, which will be ratified next Monday in
the Electoral College.

Speaker 1 (43:00):
Later, George W. Bush offered a few conciliatory remarks of
his own.

Speaker 11 (43:04):
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.

Speaker 1 (43:18):
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.

Speaker 2 (43:33):
Thank you for your attendance and cooperation and fulfilling this
awesome duty.

Speaker 13 (43:37):
This meeting of the presidential electors is now adjourned.

Speaker 2 (43:40):
Thank you all very much.

Speaker 19 (43:40):
God blessed.

Speaker 1 (43:45):
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.

Speaker 16 (43:54):
The whole number of the electors appointed to vote for
President of the United States as well, the.

Speaker 27 (43:58):
Third vice president in history to preside over the certification
of his own defeat.

Speaker 4 (44:03):
George W.

Speaker 16 (44:04):
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.

Speaker 1 (44:30):
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.

Speaker 9 (44:47):
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

(45:08):
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.

Speaker 1 (45:30):
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

(45:50):
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

(46:13):
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.

Speaker 12 (46:32):
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

(46:52):
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.

Speaker 1 (47:12):
In twenty thirteen, for the first time ever, O'Connor publicly
expressed second thoughts about the ruling in Bush v.

Speaker 18 (47:19):
Gore.

Speaker 1 (47:21):
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

(47:42):
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.

Speaker 24 (47:56):
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.

Speaker 1 (48:07):
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

(48:27):
ballot standards, ranging from the most lenient to the most strict,
under vote ballots.

Speaker 24 (48:32):
Those now famous hanging, dimpled and pregnant chads.

Speaker 1 (48:36):
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.

Speaker 24 (48:44):
So Gore wins using a strict vote counting method, he
did not support Bush wins using a more liberal method
he opposed.

Speaker 1 (48:53):
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

(49:15):
five thousand undervotes and over votes from Florida.

Speaker 27 (49:17):
Trained coders, often operating in teams, viewed but did not touch,
disputed ballots and wrote down what they saw.

Speaker 1 (49:25):
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.

Speaker 27 (49:34):
Under those circumstances, Gore would have gained to a plus
one hundred and seventy one largely.

Speaker 1 (49:39):
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.

(50:01):
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

(50:22):
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.

Speaker 27 (50:36):
Try to remember the kind of September we just had.
What consumed us last December is a paragraph for history now.

Speaker 1 (50:47):
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

(51:08):
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

(51:29):
reported that Scalia privately referred to the equal protection argument
used to end the Florida recount as a piece of shit.

(51:59):
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

(52:20):
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

(52:42):
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.

Speaker 23 (53:10):
I don't know