Bush v. Gore: Bonus - Lawfare

Summary

Fiasco Podcast Summary: "Bush v. Gore: Bonus - Lawfare"

Episode Release Date: December 16, 2024
Host: Leon Neyfakh
Podcast Series: Fiasco by Pushkin Industries

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Introduction

In the fifth bonus episode of Pushkin Industries' acclaimed series Fiasco, host Leon Neyfakh delves deep into one of the most contentious moments in recent American political history: the Supreme Court case Bush v. Gore. This episode, titled "Bush v. Gore: Bonus - Lawfare," features in-depth conversations with two of the highest-profile lawyers from the saga—David Boies and Ted Olson. Both men provide unique perspectives on their experiences, the legal battles, and the profound implications of the case that ultimately decided the 2000 U.S. presidential election.

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Background

The episode begins with Leon Neyfakh setting the stage for listeners, explaining the significance of Bush v. Gore in shaping the political landscape of the United States. The case emerged from the disputed 2000 election between Al Gore and George W. Bush, centering on the Florida vote recount and culminating in a landmark Supreme Court decision that effectively determined the election's outcome.

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David Boies: Representing Al Gore

David Boies, fresh off a high-profile antitrust case against Microsoft, recounts his transition to representing Al Gore in the Florida recount. Initially tasked with arguing the case in Florida, Boies was unexpectedly called upon to present the argument before the U.S. Supreme Court after the Florida Supreme Court halted the recount.

• Motivation and Commitment

  Boies shares his deep-rooted commitment to democracy and the importance of accurate vote counting. He reflects:

  "Democracy depends on votes being counted and the will of the people being expressed... ensuring that the person who actually won the election occupied the White House."
  [04:20]

• Arrival in Florida and Initial Impressions

  Arriving in Tallahassee under intense media scrutiny, Boies describes the atmosphere:

  "We were clearly in the middle of a major spectacle... It was very much a participatory sport."
  [07:10]

  Despite being on opposing sides, Boies formed a camaraderie with fellow lawyer Barry Richards, highlighting the mutual respect amidst the high-stakes environment.

• Supreme Court Argument and Aftermath

  Boies details his experience during the Supreme Court arguments, expressing both optimism and apprehension:

  "I thought the argument was going very well... but I became much more pessimistic when Kennedy kept pushing the equal protection argument."
  [31:33]

  After the decision was handed down, Boies felt a mixture of disappointment and continued respect for the judiciary's role:

  "I was disappointed... The Supreme Court has been the most powerful engine for social change in this country."
  [34:08]

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Ted Olson: Defending George W. Bush

Ted Olson, who later became Solicitor General in the Bush administration, provides his perspective on defending President George W. Bush. Olson had substantial experience with the Supreme Court, having argued fifteen cases prior, but Bush v. Gore presented unprecedented time constraints and pressures.

• Preparation Under Pressure

  Olson describes the frantic preparation process:

  "We filed our papers in the Supreme Court by 9:00 Friday night... we had to do all this under enormous time pressure."
  [14:12]

• Experience in the Supreme Court

  The day of the argument was marked by extreme tension and heightened visibility:

  "You cannot imagine a more tense, pressure-packed moment... saying, 'Mr. Chief Justice, may it please the court.'"
  [16:07]

  Olson emphasizes the importance of focus and respect during oral arguments, despite the chaos and constant interruptions from the justices.

• Post-Decision Reflections

  Following the Supreme Court's ruling, Olson reflects on the process and its implications:

  "The Supreme Court was inherently political... It was intervening in a way that had partisan political implications."
  [35:01]

  He maintains that the Court acted within its structural boundaries, even if the decision had profound political consequences.

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Key Insights and Discussions

• Mutual Respect Amidst Opposition

  Both Boies and Olson highlight the professional respect they held for each other despite representing opposing sides. Boies notes:

  "You can fight very hard and feel even emotional about your cause, and yet at the same time respect and even admire the people on the other side."
  [09:13]

• Impact on the Judiciary and Democracy

  The episode delves into how Bush v. Gore affected perceptions of the Supreme Court as an apolitical arbiter. Boies expresses concern over the Court's role in determining the presidency, a function traditionally separate from judicial responsibilities.

• Legal Strategy and Constitutional Interpretation

  The lawyers discuss the legal strategies employed, particularly the emphasis on the Equal Protection Clause versus Article 3 of the Constitution. This strategic focus significantly influenced the Court's decision-making process.

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Conclusions

"Bush v. Gore: Bonus - Lawfare" offers a compelling narrative of the legal intricacies and personal experiences of two prominent lawyers at the heart of a pivotal moment in American history. Through candid conversations, David Boies and Ted Olson illuminate the complexities of legal strategy, the pressures of high-stakes litigation, and the enduring impact of the Supreme Court's decisions on the nation's democratic foundations.

Leon Neyfakh masterfully guides listeners through the nuanced debates and emotional landscapes of the case, providing a rich, engaging account that is both informative and thought-provoking. For those unfamiliar with the intricacies of Bush v. Gore, this episode serves as an essential exploration of how legal battles can shape the course of history.

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Notable Quotes

1. David Boies on Democracy and Vote Counting

   "Democracy depends on votes being counted and the will of the people being expressed."
   [04:20]

2. Ted Olson on the Supreme Court Experience

   "You cannot imagine a more tense, pressure-packed moment... saying, 'Mr. Chief Justice, may it please the court.'"
   [16:07]

3. David Boies on Respecting Opposing Counsel

   "You can fight very hard and feel even emotional about your cause, and yet at the same time respect and even admire the people on the other side."
   [09:13]

4. Ted Olson on the Political Nature of the Supreme Court

   "The Supreme Court was inherently political... It was intervening in a way that had partisan political implications."
   [35:01]

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Conclusion

This episode of Fiasco not only recounts the technicalities of a Supreme Court case but also delves into the human elements of legal battles—trust, respect, pressure, and the profound implications of judicial decisions on democracy itself. Whether you're a history enthusiast, legal professional, or simply curious about the mechanics behind one of the most significant legal cases in recent history, "Bush v. Gore: Bonus - Lawfare" offers invaluable insights and engaging storytelling.

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For the full season of Fiasco, including ad-free episodes, subscribe to Pushkin+ on Apple Podcasts or visit Pushkin.fm.

Transcript

[Leon Nayfak]

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[David Boies]

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[Leon Nayfak]

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[David Boies]

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[Ted Olson]

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[Ted Olson]

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[Leon Nayfak]

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[Ted Olson]

You cannot imagine a more tense, pressure packed moment with all of that at stake and saying, Mr. Chief justice, may it please the court. And starting your argument.

[David Boies]

You understand and respect the role that the lawyer on the other side is.

[Leon Nayfak]

Playing, but you weren't convinced by their case.

[David Boies]

I was not convinced by their case. I was not convinced by their case then. I'm not convinced by their case now.

[Leon Nayfak]

Hey fiasco listeners. Today, in the fifth bonus episode of our series on the 2000 election, you'll hear my conversation with two of the highest profile lawyers involved in the saga of Bush v. Gore, David Boies and Ted Olson. You'll hear what it was like to make the case for both sides. From having to quickly catch up on Florida election law, to getting nervous before Supreme Court oral arguments, to even befriending your opposition. We'll start with David Boies. When Boies got the call to come down to Florida, he was fresh off of arguing on behalf of the government against Microsoft in a high profile antitrust case. And he was working on a licensing lawsuit which he was representing Calvin Klein. I asked Boies why he was willing to drop everything and represent Al Gore in the recount.

[David Boies]

If I hadn't been a lawyer, I would have been a high school American history teacher like my father was and to have an opportunity to participate in what was. Even at that stage, we didn't know how important the case was going to be. But even at that stage, we knew it was an important case. We knew it was a case that was going to involve historic decisions. And to have an opportunity to have a front row seat and maybe even be a participant was something that would have been hard to turn down. In addition, I'd been involved in a few electoral contests before, and democracy depends on votes being counted and the will of the people being expressed. You can suppress democracy in lots of ways, and we suppress democracy in lots of ways in this country, but you can also suppress democracy after the votes are cast by not counting them fairly and not counting them accurately. And so the process by which votes are counted is a critical part of. Of the implementation of democracy. And I thought that this was going to be something that was going to be essential to people's confidence in our democratic process and also not put too fine a point on it, making sure that the person who actually won the election occupied the White House.

[Leon Nayfak]

Did you have a firm feeling at that point that two days out from Election Day that Gore was the winner?

[David Boies]

Not really. When I was called, and indeed for the first several days, and maybe most of the time that I was in Florida, I didn't really know who won Florida. It was simply too close to call. All I knew is that it was a statistical tie. And what was going to be critical, I thought, to a fair election, but also to the people's confidence in our electoral process, that the votes actually be counted the way they were cast. And I didn't know who was going to win that. I just knew that it was important that that happen and that happen in an organized way. The first time that I really became convinced that Gore had won was actually the Saturday when they stopped the vote counting. Because during the course of the previous Friday and Saturday morning, the votes had begun to come in and you could tell that they were discovering lots of votes, predominantly not overwhelmingly, but still a majority favoring Gore. And so the margin was already disappearing at the time that the Supreme Court prematurely stopped the vote count.

[Leon Nayfak]

Yep. So tell me what it was like when you got down there.

[Ted Olson]

You.

[Leon Nayfak]

You. You flew from White Plains, right?

[David Boies]

I flew from White Plains and I got down there about midnight. Because this all happened the first day.

[Leon Nayfak]

Yep.

[David Boies]

I was called. They didn't get through to me until about 5:00 in the afternoon. I finished up what I was doing, got my son Jonathan to pull some cases on Florida election law. So I could read it on the plane for the first time ever. For the first time ever, read the Florida statute as well, and arrived down there shortly before midnight and went to the campaign headquarters in Tallahassee, and everybody was still there. I remember we walked in and Ron Klain saw me and said, welcome to.

[Leon Nayfak]

Guatemala, referring to Florida. If Ron Klain was trying to tell Boies that he had just landed in illegal jungle, he was right. But at least he wasn't completely alone there. As the major lawsuits wound their way through the Florida courts, David Boies became pals with one of his counterparts on the Bush side, Barry Richard. And why not? They were going through the same thing.

[David Boies]

We were clearly in the middle of a major spectacle. People walked with you, cameras walked with you, every place you went, everybody trying to get you to say something about what was going on.

[Leon Nayfak]

Was it mostly reporters coming up to you in Tallahassee streets, or was it normal people who've seen your face on tv?

[David Boies]

It was both. I remember people driving by and shouting things out, either depending on what their point of view was. Everybody recognized Barry Richards and myself. And so somebody was always yelling out to you, either encouraging you or trying to discourage you. It was a. It was very much a participatory sport.

[Leon Nayfak]

But you guys were often walking together, right?

[David Boies]

And we were often walking together, and sometimes they would be shouting the same things at both of us. We were walking together, and while we didn't really know each other prior to the contest, we became good friends during the contest.

[Leon Nayfak]

Where did you guys spend time together? Was there places in Tallahassee where you go?

[David Boies]

There was a sports bar, sort of kitty corner across the street from where I was staying. I was staying at the Governor's Inn, and there was a sports bar close by where we would go for either a drink or a meal.

[Leon Nayfak]

I think to non lawyers, this is like. This is. This is counterintuitive, right? The idea of two lawyers on opposite sides of a case being able to come together like this. And I feel like the missing. The thing that they're missing is that you guys found this fun, right? You found it intellectually stimulating.

[David Boies]

It was intellectually stimulating. We both thought we were doing important work, and we both recognized that our role in the process was to present and argue for a particular side. Sometimes people, people who aren't lawyers, confuse the lawyer with the client, and they think that the lawyer has got to be as angry at the lawyer on the other side as the client is angry at the client on the other side. And when that happens, our justice system begins to erode.

[Leon Nayfak]

But I have to say, you had clearly had a personal investment in the outcome. Not because you wanted Gore to win or you wanted whatever, but because you believed you were right. You believed you had. You're right. So, I mean, I'm curious, like, even just during the Saul's trial or during the Florida Supreme Court hearings, when you're in the courtroom across from Barry Richard, your pal, how do you sort of balance the sense of intellectual gamesmanship, the sense that you're like, in the super bowl from the stakes and the stress of possibly losing to this other guy?

[David Boies]

There's no doubt that in any important case, the lawyer becomes very closely identified with a client. You usually come to believe your client is right, even if you didn't start off feeling that way. But particularly in a case like this, where I felt not only was my client right, but that I felt that the principles that we were fighting for were terribly important principles for our country, you inevitably become personally involved in the matter. At the same time, you understand and respect the role that the lawyer on the other side is playing. And everybody is entitled to a effective presentation by their lawyer. Our justice system depends on it. And so even though I was absolutely convinced that Gore was right, I still respected the role that Barry Richard was playing. So you can fight very hard and feel even emotional about your cause, and yet at the same time respect and even admire the people on the other side that are presenting their client's case.

[Leon Nayfak]

But you weren't convinced by their case.

[David Boies]

I was not convinced by their case. I was not convinced by their case then. I'm not convinced by their case now.

[Leon Nayfak]

So that was David Boies who argued the Gore campaign's case in 2000. Another lawyer boies respected and admired, but whose case he was not convinced by was Ted Olson. If hearing Boyce's name next to Olson's rings a bell, it might be because they actually teamed up in 2013 to sue California over Proposition 8, the state's ban on gay marriage. But back in 2000, Ted Olson was working for the Bush campaign and getting ready to make his argument before the US Supreme Court. After the break, my interview with Olson. Together T Mobile for business and industry leaders are innovating with our advanced 5G solutions for Walt Disney Studios. We transformed moviemaking by syncing teams in California with a remote production hub in Hawaii, enabling Picture Perfect collaboration to help bring Lilo and Stitch to theaters this summer. For PGA of America, we deliver pro level efficiency with connected security and ticket the century for smoother operations. Seamless transactions and better fan experiences from gate to green. And for tractor Supply, we put 5G business Internet to work across 2200 stores cultivating AI driven customer experiences to keep things running seamlessly inside curbside and countryside. We're helping industries redefine what's possible because with a partner that's as committed to your business as you are, there are no limits. Discover how our advanced 5G solutions can take your business further@t mobile.com now have you ever gotten sick on a very expensive, very non refundable family trip? AmazonOne Medical has 24. 7 virtual care so you can get help no matter where you are. And with Amazon Pharmacy your meds can get delivered right to your hotel fast. It's kind of like the room service of medical care. Thanks to Amazon Healthcare just got less painful. Not everyone who handles your personal information.

[Ted Olson]

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[Leon Nayfak]

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[Ted Olson]

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[Leon Nayfak]

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[Ted Olson]

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[Leon Nayfak]

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[David Boies]

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[Leon Nayfak]

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[Ted Olson]

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[Leon Nayfak]

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[Ted Olson]

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[Leon Nayfak]

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[Ted Olson]

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[Leon Nayfak]

Call 1-800-LIFELOCK and use promo code IHEARTRA or go to lifelog.com iheart for 40% off. Terms apply. By the time Ted Olson was working for the Bush campaign, he had already argued 15 cases before the Supreme Court. For most of them, he had prepared for months. But Bush v. Gore was different. As Olson explained during our interview, he didn't have months or even weeks to get ready for this. He only had one day.

[Ted Olson]

You don't have time to do all of the things that you would like to do. If you're preparing for a Supreme Court argument, you like to have moot courts, which are preparation sessions, practice sessions with other people asking you questions, interrupting you the way the justices do. You might want to spend more time doing research when you're having to do it all in 24 hours. The Florida Supreme Court decision on on that Friday came down at 4 or 5 o'clock in the afternoon and we filed our papers in the Supreme Court, I think by 9:00 Friday night. And then the Supreme Court stayed the recount and granted the hearing on Saturday. So we had to do all this under enormous time pressure. Obviously you can't do everything you want to do, but you have a team of very conscientious people and I'm speaking for the other side as well, trying to do the very, very best that you can and just hope that you haven't overlooked something.

[Leon Nayfak]

Tell me about the morning. I know this is. I always find when I'm talking to lawyers who sort of mostly live in the world of ideas and arguments, they always bristle a little bit when I ask these kinds of questions. But I wonder if you could just take me back to the morning of the arguments a little bit. What do you remember about the atmosphere in the courtroom? You know, how it was different from other Supreme Court cases you'd argued based on just how, just how it felt to be in there?

[Ted Olson]

Well, it was a remarkable experience because 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, campaign, representatives from both sides, journalists, people of interest, anybody who would get into that courtroom and managed to get into that courtroom. And it's the presidency of the United States. Everyone is watching. They were broadcasting, which was a step forward for the Supreme Court. They were broadcasting the audio of the arguments. The moment that we finished, they were immediately sending the audio out to the rest of the world. And people all over the world were watching and listening. Various television networks were going to be broadcasting it with drawings because the cameras aren't permitted in the courtroom of the various individuals and the justices. You cannot imagine a more tense, pressure packed moment than standing up in front of all of those people and the nine justices with all of that at stake and saying, Mr. Chief justice, may it please the court, and starting your argument. And I think all of us felt, for God's sakes, I hope I can get these words out without stumbling or forgetting what I am or forgetting who I am or forgetting what the arguments are. One of the lawyers made a mistake three times, I think he did. Called the justices by the wrong name.

[Leon Nayfak]

Yeah, yeah, clock, I think.

[Ted Olson]

Yes, that sort of thing you can happen, but you have to keep your wits about you or you shouldn't be there.

[Leon Nayfak]

To the aspiring Supreme Court petitioners in our listenership, do you have any psychological things that you do when you're in that situation to try to keep yourself focused and try not to. Try not to say something that's the opposite of what you mean.

[Ted Olson]

Well, 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 channel that adrenaline, that energy that's pumping through you into the context and the substance of what you're saying, the arguments. 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. I've had 60 to 70 interruptions in the course of a half an hour. So you have to pay attention to what you're doing, and it kind of helps. You've read about football players that the quarterback becomes a little bit more effective after he's been hit for the first time because then he's focused on the game and so forth. But that's somewhat similar in court. And I also tell lawyers, take a look at all those people up back in the courtroom watching you, and the clerks and the journalists and the spectators and so forth, and if you'd rather be with them watching, then that's where you should be. But if you'd rather be up there doing it, then take a deep breath, enjoy it, and appreciate the fact that you've been given an opportunity to participate in an argument, and in this case, a very important argument in a very, very important case. So in a sense, it's necessary to relax a little bit to the extent that you can and focus on what it is that you're hearing and what it is that you're saying.

[Leon Nayfak]

Have you ever taken beta blockers?

[Ted Olson]

No.

[Leon Nayfak]

I tried them once before a live show. It was quite effective.

[Ted Olson]

I thought, well, I'm at a point in my career where I'm probably not going to change whatever my style, old dogs, new tricks kind of thing.

[Leon Nayfak]

Right. You obviously came in with a deep, deep understanding of every justice's judicial philosophy, ideological inclinations. Who were the justices you were talking to most directly during your arguments? Well, you.

[Ted Olson]

What I tell myself and tell my colleagues when we're doing this sort of thing is don't take any justice for granted and don't assume that you're going to lose any of the justices. Try to make arguments that if you were on one side or another, in this case, of the political spectrum, and I've been in various different contexts in the Supreme Court try to make arguments that are rational and coherent and that are respectable, that any justice could say, well, I understand the logic of that. That doesn't mean you're going to win them over. But that means you've got to listen to them. You've got to treat their questions with respect. You can't be dismissive. You can't ignore the questions from a Justice that seems hostile. And you can't take for granted that what sounds like a friendly question isn't some kind of a trap either. An intentional trap. No, it does happen. It can be a trap. Or you can say something, because the justice that you're talking to at that particular moment may be asking you something and you want to agree with what that justice is asking you or the sense of that Justice's question. But the impact of your answer on the other Justices and the other votes, you have to think about that. So you can't take anything for granted. You have to listen to them. They are the persons who are going to decide this, and you have to treat them. And of course it makes sense and it's sort of common sense. You have to treat them with respect and listen to them. But it's hard to do because you're getting questions from all different directions and there's very, very little time. And all of us at that point, we've been under pressure for 35 days or so, and we'd been back and forth to Tallahassee on airplanes, and the airplanes are not. I was on time and, you know, things go wrong, but you've gotta keep your feet on the ground and your head on your shoulders.

[Leon Nayfak]

How'd you feel walking out of the courtroom? Did you feel like the questions indicated that you were in good shape?

[Ted Olson]

I never take it for granted when I walk out of the courtroom all I could. In the first place, you're exhausted. In the second place, you're relieved that it's over. In the third place, I did feel that we had made our arguments, that we were making cogent arguments, and that I thought we were doing better on that count than the other side. But I wasn't assuming that we were going to win. I wasn't relieved, and I never felt that we hadn't won. And I think along with everybody in the world, I didn't know until they called me up at 10 o'clock on December 12th and told us.

[Leon Nayfak]

Do you remember who called you?

[Ted Olson]

There were various different clerks working that night, and General Souter S U T E R different than Justice Souter had each one of his assistants call one of the lawyers for each of the parties, got us all on the phone. So nobody heard anything until we were all on the phone and then read the outcome at the same time. So we were all getting information at the same time, very bare bones information. There is a decision from the cause, there's a plurality decision. There's a per curiam decision. There's a dissenting opinion by Justice Stevens joined by Justices so and so and so and so and so forth. Dissenting opinion by Justice Ginsburg, joined by so and so. And you had to sort of infer what the outcome was. It was helpful that the four liberal justices who had voted against the stay, and I call them liberal, I hate to use that term, but the four justices who had voted against the stay were all rendering individually dissenting opinions. You could, you could draw the inference that the justices who were against you on Saturday were against you on Tuesday. And that's a good sign.

[Leon Nayfak]

But even if, like, let's just imagine that all nine justices, after hearing oral arguments, let's just say you had really screwed it up, and all nine judges would say, actually, we were wrong to issue a stay. Let's have this recount go on. I mean, the time was up right at that point. It was over.

[Ted Olson]

Well, I think the justices who dissented did not believe. Seven of the nine justices believed that we had made legitimate, meritorious arguments on the equal protection and due process clause. The justices were 5 to 4 on whether or not the recount, the statewide recount that had been prescribed by the Florida Supreme Court had to be stopped. So the other, the four dissenting justices, for various different reasons, you have four different dissenting opinions there, for various different reasons, felt that somehow those statutory deadlines that were in federal law could somehow be adjusted or moved or something, that things could be done faster. I think that that assumed that things could happen faster than they could possibly be happening. If you had looked at the history we started off, was it November 8th, I think the date of the election?

[Leon Nayfak]

Seventh.

[Ted Olson]

Seventh, yep. Okay. So we were starting. This whole process was going in various different directions, beginning with November 7th. We were now at December 10th, December 11th, December 12th. And we're running up against various statutory deadlines, which culminated in a process that had to be finished in Washington in early January. And then there had to be a new president taking an oath of office on the 20th. And so I could not see how all of that could be done and that the statewide recount was going to be. And it was going to be different in every one of those 67 counties. And I could just see more chaos. And I think that the justices who voted with us with respect to stopping this entire process perceived that that was just going to be a continuing process, unfolding of chaos, and people were still not going to find out who was going to be the President of the United States.

[Leon Nayfak]

Yeah. Right. Okay. And so, final question. I read Evan Thomas's book about Justice O'Connor that just came out, and in there, he has a quote from Scalia. It's not firsthand, but it says that Scalia privately scoffed that the equal protection rationale was, as we say in Brooklyn, a piece of sh. And I'm curious what your reaction is to that.

[Ted Olson]

Well, my reaction is that. That he felt, I believe, and what he meant by that is that we have a structural basis in the Constitution to decide this case, and it's in the concurring opinion that the decisions with respect to the rules for the selection of the electors have to be decided by the legislature and not by the courts. That's a simple, more straightforward way of resolving it. He's always been, or he always was, someone that felt very strongly about the structure of the Constitution, and he believed, and he said this at his confirmation hearing, that people all over the world have wonderful bills of rights. The Pakistani constitution and the Iraqi constitution and the constitution of the former Soviet Union had all kinds of really elegant sounding bills of rights. What has protected us in this country is the structure of the separated powers. I know many people, including many academics and other people in the political world, disagree with the whole process, but I think the United States Supreme Court did what it had to do, and it did it when it had to do it.

[Leon Nayfak]

That was Ted Olson, who argued on behalf of the Bush campaign in federal court back in 2000 and later became Solicitor General in the Bush administration. Olson died in November of 2024. David Boies, for his part, had not planned to be the one to argue Bush v. Gore before the Supreme Court. That honor was supposed to go to Lawrence Tribe, the attorney who had been handling the Gore campaign's federal litigation efforts. But Boies got the call instead, leaving him scrambling to prepare his case, just like Olson was doing. At the same time, you had gone home right after the Florida Supreme Court ruling.

[David Boies]

I thought my job was done. I thought that the votes were being counted. And even when the Florida vote count was stopped by the United States Supreme Court, I thought my job was over with because my job had been to argue the case in Florida, and there was a separate team that had been Arguing the case in federal court. While I was actually in the air, flying back to New York from Tallahassee, Al Gore decided that he wanted me to do the argument in the United States Supreme Court. I found that out when I landed.

[Leon Nayfak]

I'm curious if you could just list the factors or dynamics that made this extraordinary or made this atypical for a Supreme Court hearing.

[David Boies]

I thought that the chances that the United States Supreme Court was going to change its mind were small. They'd already put a pretty big stake in the ground when they stopped the vote counting. In retrospect, the way the argument unfolded, I think if anybody had had a chance to change somebody's mind, I had a better chance than anybody because I knew more about what was at the core. Remember that the primary issue Bush took the case of the Supreme Court on was not the equal protection issue. Equal protection issue was buried way deep in the brief. So the issues that I think we all thought were going to be dispositive in terms of whether the courts could play a role or what role the courts could play in an election for.

[Leon Nayfak]

Electors, whether it counted as changing the law after the election.

[David Boies]

Exactly.

[Leon Nayfak]

To change the certification deadline and then to order the recount.

[David Boies]

Exactly. Whether you could do that under Article 3 of the Constitution.

[Leon Nayfak]

And so that was Article 3 was the bulk of what you guys talked about during our arguments until Kennedy brought it up? Yes. Equal protection.

[David Boies]

I mean, as I say, it was buried deep in Bush's brief equal protection argument. And Ted didn't even get to it until late in his argument after he'd been prompted twice.

[Leon Nayfak]

How did you feel leaving the court that day? Did you realize when you left that equal protection would be the focus of.

[David Boies]

The decision during the argument? I thought the argument was going very well. I thought that it was clear that Kennedy and probably O'Connor were not buying the Article 3 argument that Ted Olson was making. And I was pretty encouraged, surprisingly encouraged. Then when Kennedy kept pushing the equal protection argument, I became much more pessimistic when I left the court, I was concerned because it sounded to me like Kennedy and O'Connor were searching for a way to sustain stopping the vote count. And I knew that the three most conservative justices were going to decide against us based on Article 3, if nothing else. So it looked to me like I could count five votes against.

[Leon Nayfak]

Where were you when the decision was handed down?

[David Boies]

I was at my house in Armock. Armock, New York, in Westchester County.

[Leon Nayfak]

Got it. The folks on television had some trouble understanding it in the first few minutes of reporting on it. Did you understand its implications right away, or did it take you how many pages do you have to read before you realize what it meant?

[David Boies]

Well, I skipped to the end, but with a judicial opinion, I always try to skip to the end, at least to see how the court comes out. And it was clear that, as I had feared, there were five judges against us. And the per curiam opinion made clear that in my mind the case was over with. And I think that it took a little while for people to for that to sink in, but I think it eventually sunk in that there was no real alternative at that point but to concede.

[Leon Nayfak]

How did it affect your view of the Supreme Court that this ruling came down the way it did and that it was justified in the way that it was? Did it change how you perceived this institution?

[David Boies]

No, not really. I was disappointed. I think it's fair to say I was deeply disappointed. On the other hand, the Supreme Court during my lifetime has been probably the most powerful engine for social change in this country. The Supreme Court has made a number of really bad decisions over the years, but that does not, I think, diminish the importance of the Supreme Court to our society, to our Constitution, to the preservation of the rights that are so important to our society.

[Leon Nayfak]

Did it reveal to you that the institution is inherently political and that there's no way to avoid that?

[David Boies]

The Supreme Court was inherently political in the Japanese internment case, in the Plessy v. Ferguson on segregation and Dred Scott? The Supreme Court, like all human institutions, is influenced by politics. I think the thing that was most disappointing is that the political influence in prior cases tended to be the influence of people pursuing a particular policy objective. Here the Supreme Court was intervening to actually pick a president. They were intervening in a way that had partisan political implications. That strikes at the fundamental principle, that of democracy, that it is the people that decide elections, not government officials.

[Leon Nayfak]

Thanks for listening to this bonus episode episode of Fiasco. We'll be back next week with one more featuring the late Supreme Court Justice John Paul Stevens, whom we interviewed shortly before his death in 2019. Fiasco Bush v. Gore is produced by Prologue Projects and distributed by Pushkin Industries. The show is produced by Madeline Kaplan, Ula Culpa, Andrew Parsons and me, Leon Nayfak. We had additional editorial support from Lisa Chase and Daniel Riley. Thanks for listening. We'll see you next week.

[David Boies]

Hey, Jenice Torres here, and I'm Austin Hankwitz.

[Ted Olson]

We're the hosts of Mind the Business.

[Leon Nayfak]

Small Business Success Stories, produced by Ruby.

[David Boies]

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[Ted Olson]

Catch up on seasons one and two and join us for a brand new season of the podcast as we talk to small business owners about how they.

[David Boies]

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[Leon Nayfak]

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