Bush v. Gore: Bonus - Legacy.

Summary

Summary of "Fiasco: Bush v. Gore – Bonus - Legacy"

Episode Title: Bush v. Gore: Bonus - Legacy
Release Date: December 23, 2024
Host/Author: Pushkin Industries
Duration Covered: [00:06]–[24:00]

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Introduction

In the final bonus episode of "Fiasco: Bush v. Gore," host Leon Neyfakh provides a reflective examination of the landmark Supreme Court case that concluded the 2000 U.S. presidential election. This episode features an exclusive interview with the late former Supreme Court Justice John Paul Stevens, offering deep insights into the case's intricacies, its enduring impact on the judiciary, and its legacy in American politics.

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Setting the Scene

[01:59] Podcast Host:
Leon Neyfakh welcomes listeners and sets the context for the episode, emphasizing the extensive research and numerous interviews conducted, particularly in Florida. He recounts the unique experience of interviewing Justice Stevens in his retirement community in Fort Lauderdale, painting a vivid picture of the Justice's humble setting juxtaposed with his monumental influence.

[03:22] Justice John Paul Stevens:
Stevens appears casual and approachable, dressed in khaki shorts and a polo, embodying the image of a true retiree despite his profound legal legacy.

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Justice Stevens on the Equal Protection Clause

Initial Expectations

[04:10] Justice Stevens:
Stevens expresses surprise at the Court's decision, stating,
"Addressing this issue in this way would hurt the Court's reputation." (04:47)
He did not anticipate the Supreme Court playing an active role in the Florida recount, believing it was solely within the jurisdiction of Florida's courts.

Dialogue with Justice Breyer

[04:10]
Stevens recounts a conversation with Justice Stephen Breyer at a party the night before the Court met:
"There was no basis for us interfering with the recount because that was something the Florida Court could do and that there had been no showing of irreparable damage." (04:10)
Both Justices felt the Court should not intervene, viewing the recount as a state matter without imminent harm necessitating federal intervention.

Reaction to the Majority's Decision

[04:35]
At the conference, Stevens and Breyer are shocked when five Justices vote to grant the stay:
"I think it's such an egregiously mistaken opinion... it's an extremely unfortunate development." (04:58)
Stevens criticizes the majority for overstepping judicial boundaries, arguing that such involvement damages the Court's reputation.

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Critique of the Equal Protection Argument

Lack of Basis for Equal Protection Violation

[06:03] Justice Stevens:
He challenges the majority's application of the Equal Protection Clause, emphasizing the lack of demonstrated favoritism towards either political party:
"There was no showing that any practice in the election favored either the Democrats or the Republicans." (06:03)
Stevens asserts that differing ballot-counting methods across counties do not inherently violate equal protection principles unless a minority group is adversely affected.

Overstepping Judicial Precedent

[09:16] Justice Stevens:
He notes the unprecedented nature of the decision:
"The case has never been followed and that's probably why it really is an exception from equal protection doctrine that is traditionally applied." (09:27)
Stevens argues that the majority's reasoning lacks consistency with established equal protection jurisprudence.

On Justices Souter and Breyer

[09:42] Justice Stevens:
He mentions Justices Souter and Breyer's partial agreement on the Equal Protection violation but clarifies they did not support the majority's remedy:
"They thought the recount should go ahead, that even if there was a violation, that they should continue with the recount under uniform standards." (10:04)
This highlights internal dissent within the Court regarding the appropriate response to the perceived violation.

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Impact on the Supreme Court's Reputation

Undermining Judicial Integrity

[17:18] Justice Stevens:
Stevens elaborates on how the decision eroded public trust:
"Because the Florida judges were not trusted to be capable of handling their own responsibilities... they undermine that assumption." (17:57)
He emphasizes that disrespect towards state courts damages the overall confidence in the judicial system.

Lasting Wound on the Court

[19:08] Justice Stevens:
Describing the decision as a "wound," Stevens reflects on its enduring negative impact:
"I think it's a wound from which they have not fully recovered." (19:08)
He attributes this wounds to the poor quality and perceived partisanship of the majority opinion.

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Legacy and Reflections

Ongoing Contemplation

[21:10] Justice Stevens:
Nineteen years later, Stevens reaffirms his stance:
"More. I think it really is an unacceptable decision." (21:21)
He remains puzzled and critical of the majority's reasoning and motivations.

Theoretical Remedies

[14:47] Justice Stevens:
Discussing potential alternatives, Stevens speculates on the Florida Supreme Court establishing uniform standards:
"They thought that the Florida Supreme Court should more clearly state the intent." (14:32)
However, he remains uncertain about the practical implications and potential backlash from the Bush campaign.

Absence of Irreparable Harm

[06:03] Justice Stevens:
He contests the majority's claim of irreparable harm to Bush:
"I didn't think they had done that. I don't think the movement bore his carry, sustained his burden." (06:03)
Stevens maintains that ensuring the accurate outcome of an election does not constitute irreparable harm necessitating federal intervention.

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Conclusion

In "Fiasco: Bush v. Gore – Bonus - Legacy," Leon Neyfakh presents a critical analysis of the Supreme Court's involvement in the 2000 presidential election recount. Through Justice John Paul Stevens' candid reflections, the episode underscores the complexities and contentiousness surrounding the Court's decision. It highlights concerns about judicial overreach, the misapplication of constitutional principles, and the lasting damage to the Supreme Court's reputation. This episode offers listeners a nuanced understanding of a pivotal moment in American legal and political history, inviting ongoing discourse on the balance of power within the judicial system.

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Notable Quotes:

• Justice Stevens on Court's Reputation:

  "Addressing this issue in this way would hurt the Court's reputation." (04:47)

• Justice Stevens on Equal Protection Misapplication:

  "There was no showing that any practice in the election favored either the Democrats or the Republicans." (06:03)

• Justice Stevens on Lasting Impact:

  "I think it's a wound from which they have not fully recovered." (19:08)

• Justice Stevens on Decision Quality:

  "It was the poor quality of the decision that I think, and the fact it showed disrespect for state court judges." (19:42)

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This comprehensive summary captures the essence of the episode, focusing on the substantive discussions between Leon Neyfakh and Justice John Paul Stevens while omitting non-content segments such as advertisements and intros.

Transcript

[Narrator]

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For third party apps. Restrictions apply. Do you think the majority believed that there was this equal protection thing or was there something else motivating them?

[Justice John Paul Stevens]

I have no idea. They must have believed in it because they set it out in the opinion. But I really find the opinion unpersuasive.

[Podcast Host]

Hey Fiasco listeners. Welcome to the final bonus episode of Bush v. Gore. As I've mentioned, We interviewed about 60 people for this series. For obvious reasons, many of them were in Florida. We traveled there for a 10 day blitz and tried to meet our interview subjects in places that were convenient for them. And for the most part that meant spending a lot of time in law offices with glass enclosed conference rooms and long wooden tables. But one of the interviews we did in Florida was a little different. Former Supreme Court Justice John Paul Stevens was living in a retirement community in Fort Lauderdale. He was about to turn 99. The person who arranged the interview was Justice Stevens daughter Sue. We waited for her in the lobby of the building where the ceilings were high and everything seemed to be made of marble. After coming out to meet us, sue took us over to her dad. He was sitting on a couch looking out a window. The first thing we saw as we approached was the back of his head.

[Narrator]

Good to meet you. Okay, thank you for seeing us.

[Justice John Paul Stevens]

I'm happy to do it. Where should we.

[Podcast Host]

It was a surreal moment. Here was someone whose impact on the country was so enormous, whose mind had brought about so much change and had affected so many people, and yet he was just sitting there, human sized, wearing khaki shorts and a polo. A true retiree.

[Justice John Paul Stevens]

I asked her if it was audio only.

[Podcast Host]

He's casual.

[Justice John Paul Stevens]

Well, dad, let me walk him around and we'll try.

[Podcast Host]

Stevens passed away in 2019. Today we want to share part of the conversation we had with him about his reflections on Bush v. Gore, in particular the equal protection claim made by the majority in the Court. As you'll hear, Justice Stevens never expected the Supreme Court to play a role in the recount, and he didn't think there was any reason for the Court to get involved. But as you heard in episode six of our series, the Bush campaign asked the U.S. supreme Court to stop or stay the process of recounting Florida's votes, arguing that it could cause irreparable harm to their candidate. The night before the Court met to discuss the stay, Justice Stevens ran into his colleague Stephen Breyer at a party.

[Justice John Paul Stevens]

And I asked him how he felt about the issue and he said the same reaction that I did, that there was no basis for us for interfering with the recount because that was something the Florida Court could do and that there had been no showing of irreparable damage. We chatted about it a short time at that party.

[Podcast Host]

At conference the next day, Stevens and Breyer were blindsided when five of the other Justices voted to grant the stay. Oral arguments in Bush v. Gore were just a few days away, and Stevens was horrified.

[Justice John Paul Stevens]

Addressing this issue in this way would hurt the Court's reputation.

[Narrator]

How so?

[Justice John Paul Stevens]

Well, the Court generally avoids unnecessarily participating in political controversies, and I thought here it was entering into uncharted territory.

[Narrator]

Before oral arguments on Monday. Did you think there was a possibility that anyone who had ruled in favor of the stay would be convinced to lift it?

[Justice John Paul Stevens]

I don't remember anticipating that. I really think I felt that the case had already been decided.

[Narrator]

You felt it was already a fait.

[Justice John Paul Stevens]

Accompli because there's no reason to grant a stay otherwise. That was about an inappropriate decision in an extraordinary remedy motion case that I can remember.

[Narrator]

And the majority felt that continuing the counting would cause irreparable harm to candidate Bush. And just. I know that this answer might seem obvious to you, but can you just spell out for me why did you think that it was impossible for there to be irreparable harm from the counting Continuing.

[Justice John Paul Stevens]

Well, the burden is on the petitioner to demonstrate irreparable harm. And I didn't think they had done that. I don't think the movement bore his carry, sustained his burden. And it didn't seem to me that getting the right answer in a contested election could ever be irreparable harm. That's what you're trying to do in elections.

[Narrator]

What did you make of the fact when you read the briefs from both sides, especially the Bush side, that they were suddenly focused on equal protection?

[Justice John Paul Stevens]

I really have very little memory of the equal protection issue being in the case, and I think I hardly mention it in my dissent. To me, in an equal protection case, there are two groups and you favor one group over the other, and that's the violation of equal protection. But there was showing that any practice in the election favored either the Democrats or the Republicans. They just were random results, which I don't understand to violate the equal protection prohibition.

[Narrator]

The argument, as I understood it, was that there was an equal protection violation because different counties in the state of Florida would be using different standards to count ballots. And so if you lived in a county where people were counting dimple chads, you had a different your vote counted more, say, than someone who lived in a county where they weren't counting dimple chads.

[Justice John Paul Stevens]

Well, there are two answers to that. First of all, the law does not require a state to have the same kind of voting equipment in every polling place. And there's more variation between different kinds of counting machines than there is between the standards. And that has never been considered an equal protection violation. And if that's permissible, why isn't a difference in counties produced by something like a non uniform rule on counting? Because there's no showing that the disuniformity favored one side or the other. And so it's a very strange use of equal protection when you don't have a minority that's injured by the rule of the. And there's no evidence whatsoever that the use of either dimple chads or whatever kind of chads favored either the Republicans or the Democrats. So there was no basis for an equal protection challenge.

[Narrator]

Why did the majority think there was?

[Justice John Paul Stevens]

If you can find out from their opinion, you're a miracle worker. It does not provide an explanation, just generally said that the results are not completely uniform. But the equal protection clause doesn't have a requirement that everything has to be equal. They can't pick one side against another is what the proper rule is to.

[Narrator]

Object to the statewide recount on equal protection grounds. Seems to me like it necessitates an objection to all elections the way they normally happen.

[Justice John Paul Stevens]

Yes, I think that's right. And of course the case has never been followed and that's probably why it really is an exception from equal protection doctrine that is traditionally applied.

[Narrator]

Is it true that Justice Souter and Justice Breyer signed on to the notion that there was a possible violation of equal protection in the statewide they did.

[Justice John Paul Stevens]

They both indicated that their feelings that it was a possible violation and I've never been able to understand why, but.

[Narrator]

They didn't join the majority on the remedy question.

[Justice John Paul Stevens]

Can you explain that, why they didn't join them? Apparently, well, they thought the recount should go ahead, that even if there was a violation, that they should continue with the recount under uniform standards. They were not as clear as I think the Florida Supreme Court was. The fact that the antenna of the voter is a standard and is a uniform standard which takes care of both dimple chads and hanging chads and everything. If you can tell who the voter intended to vote for, that is both a sensible standard and one that can be administered.

[Narrator]

Did you ever look at one of those ballots and see what the dimples look like?

[Justice John Paul Stevens]

I really didn't.

[Narrator]

I think the controversy, right, was that three members of a county canvassing board could look at a single ballot and they'd see a dimple and two of them might say, well, clearly that person tried to push the thing through and it didn't work. And the other one would say no, no, that could be they thought about voting for that person and they decided not to.

[Justice John Paul Stevens]

Well, I don't think in those controversies the question was who the voter intended to vote for. The question was whether the dimple was sufficient evidence of that. But I don't think there, as far as I can remember, I don't remember any controversies of individual ballots being ambiguous as to the intent of the voter.

[Podcast Host]

More of my conversation with former Supreme Court Justice John Paul Stevens after the break.

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[Narrator]

Do you remember just going back to Justice Souter and Justice Breyer's belief that there was a remedy here? What were they imagining?

[Justice John Paul Stevens]

What were they.

[Narrator]

Yeah, what was the remedy they were imagining?

[Justice John Paul Stevens]

They thought that the Florida Supreme Court should more clearly state the intent. The best I can remember, the intent of the voter standard, but they didn't think there was any necessary obstacle to doing that.

[Narrator]

What do you think would have happened if the Florida Supreme Court had created a uniform standard and they had said, okay, dimples count or they don't count. Would that have been struck down by the Bush people as a new law, just like the certification deadline had been?

[Justice John Paul Stevens]

I have no idea.

[Narrator]

It seemed like a trap a little bit. It says you can't make up a new law and you don't have a standard and you need a standard. But a new standard would be a new law.

[Justice John Paul Stevens]

Yeah. Well, I suppose that's right, but that's just speculation for me.

[Narrator]

Do you think the majority believed that there was this equal protection thing or was there something else motivating them?

[Justice John Paul Stevens]

I have no idea. They must have believed in it because they set it down in the opinion. But I really find the opinion unpersuasive.

[Narrator]

I think to some people outside, to many Americans who saw this unfold. They see the same things you see, and they go to the very simple explanation that the five justices wanted Bush to win.

[Justice John Paul Stevens]

Well, I can't comment on that. I just don't know. There was never any. Never any such discussion of which I was aware.

[Narrator]

Those are all my questions. Would you be willing to read from your dissents a few things into the microphone? Would that be okay?

[Justice John Paul Stevens]

I guess so. If you got the dissent there, I have them, yeah.

[Narrator]

So.

[Justice John Paul Stevens]

It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is a nation's confidence in the judge as an impartial guardian of the rule of law. I respect the dissent. No, that's true. I think I hit it right on the head.

[Narrator]

And to be clear now, having spoken to you, I gather you didn't mean that. As you put it, the nation's confidence in the judge is an impartial guardian of the rule of law. The reason that would be damaged was why?

[Justice John Paul Stevens]

Because the Florida judges were not trusted to be capable of handling their own responsibilities, and they should be presumed to be competent, intelligent people. And they undermine that assumption. Both in the chief's separate opinions saying that anything that didn't qualify for machine ballot should not be a legitimate vote, which the court had said over and over again, at least more than once. And also the particular action they took in this case.

[Narrator]

Can I tell you how I read it initially and how I think a lot of people read that line?

[Justice John Paul Stevens]

Yes.

[Narrator]

That you were saying that the nation's confidence in the judge is an impartial guardian of the rule of law was undermined because the majority in the Supreme Court had ruled in a way that was not impartial.

[Justice John Paul Stevens]

Well, I didn't mean it that way. I meant to say that their criticism of the impartiality of the Florida courts would have that effect.

[Narrator]

What Mark did the ruling Leave on the court in your view?

[Justice John Paul Stevens]

Well, I think it damaged the reputation of the court because I think it's such an egregiously mistaken opinion. But we've had bad opinions over the years from time to time, but this one was especially bad.

[Narrator]

So what mark did it leave on the court? I think there was a point where someone described it as a wound on the court.

[Justice John Paul Stevens]

A wound? Well, yeah, I think it was, and I think it's a wound from which they have not fully recovered. But that's a judgment others can make as well as I can.

[Narrator]

Can I just ask you to elaborate on why that caused such a wound?

[Justice John Paul Stevens]

Well, because it was an important case and it was the center of attention and it did not comply with the standards of excellence that Supreme Court normally does and should require, and not because.

[Narrator]

It was a partisan decision. I think the common wisdom is that it damaged the Court's reputation because it was a partisan decision. But is that not how you feel?

[Justice John Paul Stevens]

No, I have. Well, I suppose that may have infected it to some extent, but it basically was the poor quality of the decision that I think, and the fact it showed disrespect for state court judges, which I think is an extremely unfortunate development. From what? Frankly, I don't think the court and judges generally have thoroughly recovered.

[Narrator]

There's a famous line in the majority opinion that says our consideration is limited to the present circumstances for the problem of equal protection in election processes generally presents many complexities. So they're saying this will not be precedent, really?

[Justice John Paul Stevens]

Well, I hadn't really thought about that, but it was pretty obvious anyway. Yeah.

[Narrator]

What are people to make of the inclusion of this very unusual line?

[Justice John Paul Stevens]

Well, I guess it's just the same thing they make of granting a stay when there was no basis for granting a stay. It's just an unfortunate development. And frankly, I think it undermined the public's confidence in the court and in state courts generally, because the court really showed disrespect for the Florida Supreme Court, which I think was unjustified.

[Narrator]

One last question for you 19 years later. Is this ruling less of a tragedy than you thought at the time or more?

[Justice John Paul Stevens]

More. I think it really is an unacceptable decision. And I think the more I've thought about it, the more I've been puzzled about how it was reached and why. I just don't know. It's just something that seemed to be a disaster when it happened.

[Podcast Host]

And that is it for this season of Fiasco. We hope you enjoyed these bonus interviews. This will be our last episode for a little while, but keep an eye out for more seasons of Fiasco that we'll be putting in this feed. Fiasco Bush v. Gore is produced by Prologue Projects and distributed by Pushkin Industries. The show is produced by Mattow and Kaplan, Ula Culpa, Andrew Parsons and me, Leon Nayfak. We had additional editorial support from Lisa Chase and Daniel Riley. Thanks for listening.

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