Speaker 1: Pushkin. Hey Leon here, Before we get to this episode,
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Speaker 1: Previously on Fiasco.
Speaker 2: Voce wins one round, Gore wins the next.
Speaker 3: It is a legal slugfest.
Speaker 2: We've gone from protest certification last night and now contest.
Speaker 4: Florida's ticking clock becomes a second adversary. December twelfth is
Speaker 4: key the dave Florida certifies it's electors.
Speaker 5: The Republican controlled state legislature scheduled a special session to
Speaker 5: name electors just in case the state Supreme Court rules
Speaker 5: against Cavador Borsch.
Speaker 3: By a vote of four to three, the majority of
Speaker 3: the court has ordered a manual recount of all under
Speaker 3: votes in any Florida county where such a recount has
Speaker 3: not yet occurred. The recount shall commence immediately.
Speaker 6: If you do not like political chaos, it's about time
Speaker 6: to head for the storm.
Speaker 1: Cell Sandra Dey O'Connor had a lot on her plate
Speaker 1: On November seventh, two thousand. It was election day, for
Speaker 1: one thing, and she had plans to attend a watch
Speaker 1: party at a friend's house. But first O'Connor was due
Speaker 1: at the United States Supreme Court.
Speaker 7: Well here argument now number ninety nine twelve fifty seven
Speaker 7: Carol M. Browner VERSUS American Trucking Association.
Speaker 1: Where she and the other eight justices were scheduled to
Speaker 1: hear oral arguments in a case involving the Clean Water Act.
Speaker 8: Now why would Congress want that advice on economic and
Speaker 8: energy efficts.
Speaker 1: O'Connor also had an important personal matter to attend to.
Speaker 1: Her husband, John had been sick, and she was trying
Speaker 1: to gather information in his condition.
Speaker 9: On election day, Sandra O'Connor spoke to her husband's neurologist
Speaker 9: for the first time about John's Alzheimer's.
Speaker 1: This is journalist Evan Thomas. He's the author of First,
Speaker 1: a Biography of Justice O'Connor, for which he interviewed her
Speaker 1: family members and former clerks, as well as her husband's neurologist.
Speaker 1: According to Thomas, John had been experiencing memory loss for
Speaker 1: several years, but he had been hesitant to call it
Speaker 1: what it was now. On the phone with his doctor,
Speaker 1: Justice O'Connor was trying to get a handle on her
Speaker 1: husband's diagnosis.
Speaker 9: John had finally started using the word Alzheimer's to talk
Speaker 9: about his condition, and she asked if there was perhaps
Speaker 9: some experimental program that he could be put into to
Speaker 9: keep the loss of memory away for as long as possible.
Speaker 9: Was there some kind of experimental program that could by
Speaker 9: him time?
Speaker 1: Sandra Dey O'Connor had a decision to make. She and
Speaker 1: her husband were both seventy years old, and she'd always
Speaker 1: thought that eventually they would move back to Arizona, where
Speaker 1: they had settled a few years into their marriage. If
Speaker 1: the two of them wanted to do that before his
Speaker 1: dementia got worse, O'Connor would need to retire from the
Speaker 1: Supreme Court sooner rather than later. The question was whether
Speaker 1: or not she could.
Speaker 9: They had considered retirement as early as nineteen ninety six.
Speaker 9: President Clinton was president, so they didn't want to retire
Speaker 9: while there was a Democrat there.
Speaker 1: O'Connor was a Republican, and if al Gore won the
Speaker 1: two thousand election, she knew that she would face enormous
Speaker 1: pressure to remain on the bench at least through his
Speaker 1: first term.
Speaker 9: According to her son Scott, they were at least thinking
Speaker 9: about retiring if there was a Republican president if Bush won.
Speaker 10: Good evening, President Reagan today named a woman to the
Speaker 10: Supreme Court and another barrier fell.
Speaker 1: O'Connor had been a justice for nineteen years. She was
Speaker 1: the first woman ever nominated at the Supreme Court.
Speaker 11: She is truly a person for all seasons, possessing those
Speaker 11: unique qualities of temperament, fairness, intellectual capacity, and devotion to
Speaker 11: the public.
Speaker 1: For years, O'Connor was a reliable member of the Court's
Speaker 1: conservative flank, but as the Court moved to the right
Speaker 1: under Reagan and George H. W. Bush, she increasingly found
Speaker 1: herself occupying the court's ideological center, and that was a
Speaker 1: powerful place to be.
Speaker 12: When Senator O'Connor was on the Court for many years,
Speaker 12: she simply was the swing justice at the Court.
Speaker 1: This is Dalia Lithwick, who writes about the law for Slate.
Speaker 1: Lithwick started covering the Supreme Court in nineteen ninety nine.
Speaker 12: She was a Reagan appointee who taxed left on affirmative action,
Speaker 12: on abortion, on church state separation. There was no case
Speaker 12: that wasn't decided in some ways by O'Connor if it
Speaker 12: was a five to four case.
Speaker 1: According to Lithwick, O'Connor didn't get a lot of respect
Speaker 1: from legal.
Speaker 12: Schot She was derided often in polls by snotty law
Speaker 12: students as the stupidest justice. I mean, people really didn't
Speaker 12: think she was, as a doctrinal matter, the smartest justice.
Speaker 12: But what she was was a pragmatist, and so she
Speaker 12: tended to sort of stand in the middle, four four
Speaker 12: on either side and say, what's going to fix this.
Speaker 1: O'Connor didn't like to be thought of as some unprincipled
Speaker 1: weather vane who turned whichever way the wind was blowing.
Speaker 1: Here again is Evan Thomas justice.
Speaker 9: O'Connor cared about the practical impact of the Supreme Court decision.
Speaker 9: She wasn't in love with doctrine. She didn't look closely
Speaker 9: at doctrinal consistency. Was she really cared about was the
Speaker 9: practical impact. How is this going to play in the
Speaker 9: real world.
Speaker 1: On election night two thousand, the O'Connors went to their
Speaker 1: friend's party and watched the returns on a television set
Speaker 1: in the basement den. Shortly before eight o'clock, the networks
Speaker 1: called Florida for Gore, a big.
Speaker 8: Call to make. CNN announces that we call Florida in
Speaker 8: the Al Gore column.
Speaker 6: This is a roadblock the size of a boulder to
Speaker 6: George W.
Speaker 10: Bush's path to.
Speaker 1: The White Given the rest of the electoral map, it
Speaker 1: looked like Gore was about to clinch the presidency. Two
Speaker 1: witnesses later told Newsweek that Justice O'Connor was visibly disappointed.
Speaker 1: This is terrible, she said, before leaving to get a
Speaker 1: plate of food. According to Newsweek, John O'Connor tried to
Speaker 1: clarify for the people still in the room that his
Speaker 1: wife was only upset because a Gore presidency would force
Speaker 1: her to wait another four years before retiring. But Gore
Speaker 1: was not elected president that night, and later, as all
Speaker 1: the lawsuits being filed in Florida were winding their way
Speaker 1: through county and circuit courts, O'Connor's son suggested to his
Speaker 1: mother that the recount battle could end up in front
Speaker 1: of the Supreme Court. It was a jarring thought. The
Speaker 1: Supreme Court was supposed to stay above politics. That was
Speaker 1: the premise of legitimacy as an institution. If O'Connor's son
Speaker 1: was right. If the Court got involved in a case
Speaker 1: that directly affected which party took control of the White House,
Speaker 1: that premise would be tested in dramatic fashion. But Justice
Speaker 1: O'Connor did not think that was going to happen, and
Speaker 1: she told her son he was being ridiculous. I'm leon
Speaker 1: Neefok from Prologue Projects and Pushkin Industries. This is fiasco
Speaker 1: Bush v.
Speaker 13: Gore, the lawyers for hold Gore and George W. Bush,
Speaker 13: pedant of the US Supreme Court.
Speaker 9: She was trying to save the country from what she
Speaker 9: saw as a car crack.
Speaker 1: Just as probably the most significant decision in thirty years.
Speaker 2: You cannot imagine a more chance, pressure packed moment.
Speaker 1: Episode six, our season finale. No Precedent How the two
Speaker 1: thousand election was put to rest in a Supreme Court
Speaker 1: case called Bush v. Gole, and how a ruling that
Speaker 1: was explicitly designed to set no precedent ended up changing everything.
Speaker 1: I didn't know this before I started researching the two
Speaker 1: thousand election, But Bush v. Gore was not the first
Speaker 1: lawsuit to crawl out of the swamps of the Florida
Speaker 1: recount and reach the U. S Supreme Court. I had
Speaker 1: always thought the Court swooped in at the very end,
Speaker 1: but this earlier case preceded Bush v. Gore by a
Speaker 1: full fifteen days.
Speaker 6: Drawing on very rarely used legal powers, the Supreme Court has,
Speaker 6: for the first time in American history, decided to step
Speaker 6: into a legal dispute in the midst of a presidential election.
Speaker 1: The case centered on the first big ruling handed down
Speaker 1: by the Florida Supreme Court during the recount. This was
Speaker 1: the one you heard about in episode three, the one
Speaker 1: that forced Secretary of State Catherine Harris to wait nearly
Speaker 1: two extra weeks before certifying the election results.
Speaker 10: Here's the latest.
Speaker 14: Florida's highest state court has blocked the Secretary of State certain.
Speaker 13: What it basically means in an opinion that justice has
Speaker 13: reached unanimously is that the hand counts continue, and the
Speaker 13: hand counts count.
Speaker 2: But the justice.
Speaker 1: The new deadline set by the Florida Supreme Court had
Speaker 1: briefly given the Gore campaign reason for hope. But the
Speaker 1: Bush team quickly appealed the ruling, and this time there
Speaker 1: was only one place left for the case to go.
Speaker 15: To, the U. S.
Speaker 16: Supreme Court.
Speaker 17: Bush is arguing that the state court overreached its authority
Speaker 17: and rewrote election law in a way that violates the
Speaker 17: US Constitution.
Speaker 1: In their petition to the U s Supreme Court, Bush's
Speaker 1: lawyers argued that by pushing back the certification deadline, the
Speaker 1: Florida Supreme Court had improperly changed an election law put
Speaker 1: in place by the Florida state legislature. In doing so,
Speaker 1: they had violated Article two of the Constitution and Title three,
Speaker 1: Section five of the US Federal Code. On November twenty fourth,
Speaker 1: the Supreme Court agreed to hear the case.
Speaker 6: A huge legal gamble pays off for the Bush campaign.
Speaker 1: Oral arguments were scheduled for December first, The battle for.
Speaker 5: The White House goes before the US Supreme Court, Bush gore,
Speaker 5: and a day for the history books.
Speaker 1: There was something momentous about the Supreme Court intervening in
Speaker 1: a presidential election. But by the time oral arguments rolled
Speaker 1: around in December first, the case had lost a lot
Speaker 1: of its urgency. The certification had come and gone. Catherine
Speaker 1: Harris had already declared Bush the winner. What difference did
Speaker 1: it make now whether the Florida Supreme Court had been
Speaker 1: wrong to set the new deadline. But Bush did not
Speaker 1: want to drop the case, and the Supreme Court kept
Speaker 1: it on the docket.
Speaker 7: We'll hear i arguement this morning in number eight thirty
Speaker 7: six George W. Bush versus the Palm Beach County Canvas.
Speaker 1: In oral arguments, the Gore side made the case that
Speaker 1: extending the deadline did not amount to passing a new law.
Speaker 1: It was merely a judicial interpretation of an existing law,
Speaker 1: something judges did all the time.
Speaker 4: As a way of shedding light on the provisions that
Speaker 4: are in conflict, so long as it's not done in
Speaker 4: a way that conflicts with a federal man.
Speaker 1: The Bush side made the opposite point. What if it
Speaker 1: had been the Florida State legislature that decided to change
Speaker 1: the date of the certification deadline, wouldn't that be considered
Speaker 1: a new law? Why was it any less of a
Speaker 1: new law just because it came from the Florida Supreme Court.
Speaker 1: Here's Ted Olsen speaking in oral arguments.
Speaker 18: I would emphasize that what the Florida Supreme Court did
Speaker 18: is basically essentially say rewriting the statute, were changing it.
Speaker 1: When they issued their ruing three days after oral arguments,
Speaker 1: the Supreme Court showed a reluctance to interfere with the
Speaker 1: proceedings in Florida.
Speaker 19: The case is submitted.
Speaker 20: The Supreme Court's historic hearing ended with a less than
Speaker 20: historic decision.
Speaker 1: Instead of weighing in on the constitutional issues at hand,
Speaker 1: the Court sent the case back to the Florida Supreme
Speaker 1: Court and asked them to provide an explanation of how
Speaker 1: they had reached their decision. Florida Supreme Court Chief Justice
Speaker 1: Charles Wells was puzzled by the request. The timing just
Speaker 1: didn't make sense to him.
Speaker 19: I talked the whole week before they their order that
Speaker 19: they were going to enter in order. Finding that the
Speaker 19: case had become moot, just dismissed that appeal.
Speaker 1: Instead, the Supreme Court was asking Wells and his colleagues
Speaker 1: to go back to the case and take another stab
Speaker 1: at it.
Speaker 19: They wanted us to revisit it, but we were busy
Speaker 19: visiting other something else at that point.
Speaker 1: You heard about the something else the Florida Supreme Court
Speaker 1: was busy with in our last episode. It was the
Speaker 1: contest lawsuit that the Gore team filed on November twenty seventh,
Speaker 1: after Catherine Harris certified the election for Bush.
Speaker 10: Good evening. It was like an earthquake in Florida. This afternoon,
Speaker 10: the Florida Supreme Court did a life saving exercise on
Speaker 10: al Gore's campaign to be president.
Speaker 1: This was the big one, the one that culminated on Friday,
Speaker 1: December eighth, in the Florida Court shocking both campaigns by
Speaker 1: ordering a last minute hand recount of every undervote in
Speaker 1: the state.
Speaker 10: A manual recount of the so called under votes, and
Speaker 10: they wanted in every part of the states sixty four counties,
Speaker 10: more than forty three thousand votes.
Speaker 1: Under votes, as you'll recall, refers to ballots that didn't
Speaker 1: register a vote for president, often because someone didn't punch
Speaker 1: through their ballot all the way. The Florida Court's ruling
Speaker 1: to manually review all these undervotes created instant uncertainty. With
Speaker 1: so many potential new votes, the race was anybody's game
Speaker 1: for the first time since election Day. The Bush team
Speaker 1: once again turned to the US Supreme Court, this time
Speaker 1: to file an emergency petition to halt the recount.
Speaker 6: The Bush campaign responds instantly, preparing a broad legal counter attack,
Speaker 6: hoping to stop the court ordered recount before it even begins.
Speaker 1: Ted Olsen, a Bush lawyer with years of experience, arguing
Speaker 1: before the Supreme Court thought it was obvious that the
Speaker 1: statewide manual recount could not be done fairly or quickly
Speaker 1: enough to make the electoral College deadline of December twelfth.
Speaker 2: It couldn't possibly be done. The earlier recount procedures of
Speaker 2: just four counties had been moving along very slowly. There
Speaker 2: was no chance that a statewide recount could be done
Speaker 2: by the time of that deadline, And so my concern
Speaker 2: was that the Florida Supreme Court was either ignoring those
Speaker 2: deadlines or wasn't paying sufficient attention to the legal impact
Speaker 2: of those deadlines.
Speaker 1: Bush's forty two page petition was filed at nine to
Speaker 1: eighteen pm on Friday, December eighth, mere hours after the
Speaker 1: Florida Supreme Court ruling was announced. When the petition reached
Speaker 1: the US Supreme Court, it fell to Justice Anthony Kennedy
Speaker 1: to decide what to do with it.
Speaker 6: The first step an emergency request to Justice Anthony Kennedy,
Speaker 6: who was assigned to that region, asking him to block
Speaker 6: the recount while the Court considers whether to take the case.
Speaker 1: Justice Kennedy was a Republican appointee with an independent streak,
Speaker 1: like Justice O'Connor, Kennedy was often a swing vote, though
Speaker 1: he was traditionally conservative on a lot of issues. He
Speaker 1: also liked to surprise people. Here again is Dahalia Liithwick.
Speaker 12: I think the two of them were very much what
Speaker 12: I would call now kind of country club Republicans, the
Speaker 12: kind of eighties Republicans who were socially conservative but not
Speaker 12: rabid movement conservatives the way we've seen. But Kennedy as
Speaker 12: a swing justice was very different. Kennedy was a reliable
Speaker 12: vote for conservative outcomes, but on a handful of cases,
Speaker 12: most notably you know the gay marriage case that came
Speaker 12: about after Bush vy Corp. He would defect and vote
Speaker 12: with the left wing of the Court.
Speaker 1: After the Bush lawyers filed their petition, Justice Kennedy wanted
Speaker 1: Chief Justice Ranquist to call conference as soon as possible
Speaker 1: so they could discuss the case.
Speaker 21: Well, I was in Washington in my office, and I
Speaker 21: remember the Chief Justice called me and told me that
Speaker 21: we should have a conference.
Speaker 1: That's former Supreme Court Justice John Paul Stevens. Stevens retired
Speaker 1: from the Court in twenty ten. I interviewed him in
Speaker 1: twenty nine nineteen, just a few months before he died
Speaker 1: at the age of ninety nine.
Speaker 21: During the year I came down here to Florida and
Speaker 21: we had this place down here, and my wife and
Speaker 21: two daughters were planning to fly to Florida on that Saturdays.
Speaker 1: I remember Stevens, who was one of the most liberal
Speaker 1: members of the Court, was skeptical that they needed to
Speaker 1: intervene in the Florida recount. The only justification for doing
Speaker 1: so would be if Bush, the petitioner, was at risk
Speaker 1: of suffering irreparable harm if the vote counting were allowed
Speaker 1: to go on. Stephens didn't see how that was possible,
Speaker 1: and he made his feelings clear to Chief Justice Reanquist
Speaker 1: on Friday evening.
Speaker 21: I told him that the request for a stay did
Speaker 21: the same to have any merit because there was no
Speaker 21: showing a veryrreal injury, and I thought I would like
Speaker 21: to go ahead with my plans and my family.
Speaker 1: Ranquist told Stephens that their conservative colleague Anthony Scalia, known
Speaker 1: to his friends as Nino, felt strongly that the petition
Speaker 1: should get a hearing right away.
Speaker 21: He told me, as I remember that Nino thought the
Speaker 21: issue was a serious one and we ought to have
Speaker 21: a conference on it. So we should plan on meeting
Speaker 21: the following morning.
Speaker 1: Justice stevens vacation was canceled. He wasn't going to Florida.
Speaker 1: Florida was coming to him. On the morning of Saturday,
Speaker 1: December ninth, county canvassing boards all over Florida pulled out
Speaker 1: their boxes of month old ballots, plugged in their vote
Speaker 1: counting machines, and started the process of separating out their undervotes.
Speaker 22: You are looking right now at a live picture of
Speaker 22: the Leon County Library in Tallahassee, Florida. That's where a
Speaker 22: manual recount of some nine thousand, so called under votes
Speaker 22: from Miami Dade County is being counted.
Speaker 1: At this hour, some counties had thousand of under votes
Speaker 1: account while others had just a few dozen. The judge
Speaker 1: overseeing the process gave them all until the following day
Speaker 1: at two pm to get the job done. If the
Speaker 1: recount could be completed by Sunday, December tenth, that would
Speaker 1: leave Florida two whole days to seat its twenty five
Speaker 1: electors before the Electoral College deadline. As recounts got underway,
Speaker 1: representatives from the Bush and Gore campaigns fanned out across
Speaker 1: the state to monitor the proceedings.
Speaker 17: Demonstrators from both sides channed outside public buildings as public
Speaker 17: servants count ballots on the inside.
Speaker 1: Meanwhile, in Washington, the nine justices of the U. S.
Speaker 1: Supreme Court met in their conference room to discuss the
Speaker 1: Bush campaign's petition to stay the recount. It was obvious
Speaker 1: right away that the room was split along ideological lines,
Speaker 1: with Sandra Day O'Connor and Anthony Kennedy both joining the
Speaker 1: Conservatives in support of granting the stay. According to Evan Thomas,
Speaker 1: O'Connor was primarily motivated by desire to contain the chaos,
Speaker 1: for it got worse.
Speaker 9: In the moment. She was trying to save the country
Speaker 9: from what she saw as a car crash. That if
Speaker 9: the recount went on in the state of Florida, it
Speaker 9: was possible that Gore would get ahead. Then you would
Speaker 9: have two sets of electors.
Speaker 1: In this scenario, there would be two competing sets of electors,
Speaker 1: and the next president would be determined through partisan warfare
Speaker 1: in Congress. That was something O'Connor wanted to avoid. As
Speaker 1: the Supreme Court prepared to make the stay order, Public
Speaker 1: Justice Stevens was dismayed.
Speaker 21: I thought addressing this issue in this way would hurt
Speaker 21: the Court's reputation. The Court generally avoids unnecessarily participating in
Speaker 21: political controversies, and I thought here it was entering into
Speaker 21: uncharged territory.
Speaker 1: At two forty pm on Saturday, December tenth, news broke
Speaker 1: that the Court had grant Did the stay?
Speaker 23: Hang on one second, David.
Speaker 6: They're interrupted me now.
Speaker 13: Bob Franken at the US Supreme Court in Washington has
Speaker 13: a bit of news. Bob, what are they saying up there?
Speaker 4: Very big news. The US Supreme Court has agreed to
Speaker 4: put a stay on the recount in Florida.
Speaker 3: There are a few hundred county election workers across this
Speaker 3: state rather bewildered right about now.
Speaker 1: Most of the canvassing boards throughout Florida were still counting
Speaker 1: at this point.
Speaker 2: I understand this is a live pixture from Cager County, Florida,
Speaker 2: where the recount has in fact stopped because of the
Speaker 2: order of the US Supreme Court.
Speaker 1: If it says stop, I'm going to stop.
Speaker 24: In fact, we're stopping right now until I see if
Speaker 24: we need to keep on stopping.
Speaker 1: A few counties had finished, and a few had not
Speaker 1: yet managed to start. David Boys, one of Gore's most
Speaker 1: trusted attorneys, was at a sports bar called Andrews in
Speaker 1: Tallahassee when he saw the news on one of the
Speaker 1: TV screens, and I thought it was a mistake.
Speaker 15: It just didn't seem possible that the United States Supreme
Speaker 15: Court was going to inter in this election to pick
Speaker 15: the winner, and to do so without even hearing argument.
Speaker 15: They're going to stop the votes from being counted.
Speaker 4: Was obviously presented by Justice Kennedy, Anthony Kennedy, who's in
Speaker 4: charge of this area. I'm reading now it is ordered
Speaker 4: that the mandate of the Floria State Supreme Court is
Speaker 4: hereby stayed pending further.
Speaker 17: It is another dramatic twist in this election saga, now
Speaker 17: thirty two days old, a saga that has left.
Speaker 2: The campaigns, the candidates, and the.
Speaker 18: Country on an extraordinary roller coaster ride.
Speaker 2: That he is not over yet.
Speaker 1: Ordinarily, a stay is a stopgap measure, a way for
Speaker 1: judges to freeze the situation in place until they have
Speaker 1: a chance to review it. But this stay was different
Speaker 1: because of the timeline hanging over the recount process. With
Speaker 1: the Electoral College deadline of December twelfth just three days away.
Speaker 1: The Supreme Court's order to halt the recount all but
Speaker 1: guaranteed that it could not be done in time. Even
Speaker 1: if the Court ended up deciding to edit resume.
Speaker 13: Even the Vice President's battled hardened legal team appeared shocked
Speaker 13: at the set back.
Speaker 25: There's no doubt that by delaying it, it has created a.
Speaker 17: Very serious issue as.
Speaker 25: To whether that count can fully be completed or not
Speaker 25: by December twelfth.
Speaker 1: Though Gore was despondent when he heard about the stay,
Speaker 1: he remained true to his instincts as an institutionalist. In
Speaker 1: a message sent to his top aids on his BlackBerry,
Speaker 1: Gore wrote, please make sure that no one trashes the
Speaker 1: Supreme Court. But the real risk might have been the
Speaker 1: Supreme Court justices trashing each other. Justice Stevens was so
Speaker 1: unhappy with the majority's decision that he wrote a dissent
Speaker 1: that his three liberal colleagues signed onto Justice.
Speaker 20: Stevens wrote that stopping this last chance recount may cause
Speaker 20: irreparable harm to Gore, and that it will inevitably cast
Speaker 20: a cloud on those.
Speaker 1: Stephens argued that Bush's claim of a reparable harm was ludicrous,
Speaker 1: that if anyone should be worried about a reparable harm,
Speaker 1: it was Gore.
Speaker 21: And it didn't seem to me that getting the right
Speaker 21: answer in a contested election could ever be an irreable harm.
Speaker 21: That's what you're trying to do in elections.
Speaker 1: I asked Stevens to read part of his descent out loud.
Speaker 21: Counting every legally cast vote cannot constitute irreable harm. On
Speaker 21: the other hand, there is a danger that a stay
Speaker 21: may cause irrebable harm to Respondence and more importantly, the
Speaker 21: public at large, because of the risks that the entry
Speaker 21: of the stay would be tantamount to a decision on
Speaker 21: the merits in favor of the applicants. Preventing the reaccount
Speaker 21: from being completed will inevitably cast a cloud on the
Speaker 21: legitimacy of the election, if it seems to me makes
Speaker 21: some sense.
Speaker 1: Justice Scalia was so angered by Stephen's descent that he
Speaker 1: decided to write a rebuttal. Scalia argued that if Bush
Speaker 1: was right that he'd won the election, the counting of
Speaker 1: votes that are questionable legality would cast a cloud over
Speaker 1: his victory. Count first, and rule upon legality afterwards, Scalia wrote,
Speaker 1: is not a recipe for producing election results that have
Speaker 1: the public acceptance the democratic stability requires.
Speaker 26: These are two justices that are going after each other
Speaker 26: with Hammer and Tom and Scalia is stating the Bush
Speaker 26: case far more strongly than the Bush lawyers stayed in
Speaker 26: their briefs.
Speaker 1: It's impossible to overstate how unusually fast the Supreme Court
Speaker 1: was moving. Bush's petition had come in on December eighth,
Speaker 1: the stay had been granted December ninth, and now oral
Speaker 1: arguments have been scheduled for December eleventh.
Speaker 4: At eleven a m total of one and a half
Speaker 4: hours for oral arguments. This is lightning speed, of course,
Speaker 4: by the Supreme Court.
Speaker 1: The Court never likes to rush anything. In their usual schedule,
Speaker 1: months and months go by between when oral arguments are
Speaker 1: heard and when rulings are issued. That gestation period leaves
Speaker 1: time for opinions to be written and rewritten many times over.
Speaker 1: Occasionally it leaves enough time for justices to change their minds.
Speaker 1: With the Electoral College deadline looming, such a leisurely approach
Speaker 1: wasn't possible. The Supreme Court was on a violently compressed schedule,
Speaker 1: and that meant the Bush and Gore lawyers were too.
Speaker 1: They had just over twenty four hours to write and
Speaker 1: submit their briefs. David Boyce led the charge on the
Speaker 1: Gore side.
Speaker 15: This did not come down to nuances of federal law.
Speaker 15: It came down to what had happened in Florida, and
Speaker 15: I knew that barn anybody.
Speaker 1: Boys's central argument was that the Florida Supreme Court wasn't
Speaker 1: making new laws, they were just interpreting ones that were
Speaker 1: already on the books. The Bush team insisted this was wrong,
Speaker 1: that in fact, the Florida Supreme Court had changed the
Speaker 1: rules of the election in the middle of the game,
Speaker 1: and that in doing so they had usurped the power
Speaker 1: of the state legislature. But the last part of the
Speaker 1: Bush brief also included a different argument, one based on
Speaker 1: the equal protection clause of the Fourteenth Amendment. Here again
Speaker 1: is Bush lawyer ted Olsen.
Speaker 2: The elasticity of the rules and the procedures put the
Speaker 2: power in the vote counters. Every time they change the rules,
Speaker 2: they could put their thumb on the scale to make
Speaker 2: it come out a certain way. When you have almost
Speaker 2: a tie in terms of the numbers, all you have
Speaker 2: to do is change a certain amount of those votes
Speaker 2: to change the outcome.
Speaker 1: It was hardly a secret that the manual recounts were
Speaker 1: being conducted under different standards in different counties. Some places
Speaker 1: were counting dimple chads, while others were throwing them out.
Speaker 1: The Bush argument was that this inconsistent application of ballot
Speaker 1: standards was itself unconstitutional.
Speaker 14: This is an ABC News special report.
Speaker 10: Hello again, everybody on Peter Jennings at ABC News headquarters.
Speaker 10: And there is the US Supreme Court with its activist outside,
Speaker 10: both for the Democrats and the Republicans today.
Speaker 1: The oral arguments in Bush v. Gore were scheduled to
Speaker 1: start at eleven am on Monday, December eleventh, a.
Speaker 13: Lawyers for al Gore and George W. Bush head into
Speaker 13: the US Supreme Court in Washington.
Speaker 27: To argue the case in about two minutes.
Speaker 20: The second oral argument in ten days involving the two
Speaker 20: thousand presidential election as scheduled to get under way.
Speaker 1: Dallia Lithwick had only recently started attending oral arguments, but
Speaker 1: she already knew the drill.
Speaker 12: You'd sort of line up in the court. I remember
Speaker 12: they line you up a long time before arguments start,
Speaker 12: and they march you in and they take away your
Speaker 12: everything but your pen and your notepad.
Speaker 1: Oddly, Lithwick and most of the other reporters were seated
Speaker 1: in such a way that they couldn't actually see the
Speaker 1: justices as they spoke from the bench. Instead they just
Speaker 1: heard their voices.
Speaker 7: Well, here argument now in number nine forty nine, George W.
Speaker 7: Bush and Richard Cheney versus Albert Gore at al.
Speaker 12: Beyond the first couple of rows, everybody's views obstructed, everybody
Speaker 12: sitting behind curtains and columns, all the reporters. And there
Speaker 12: was at the time somebody from the press office at
Speaker 12: the Court who would get hand signals so you would
Speaker 12: know for Justice Scalias speaking six, and that was how
Speaker 12: you knew who was talking.
Speaker 1: The air in the room was stifling as Lithwick and
Speaker 1: her colleagues tried to make out what was happening.
Speaker 12: My memory of it is it was, I mean almost
Speaker 12: hanging from the lamps, like it was so packed and
Speaker 12: so hot, and that there was a feeling, at least
Speaker 12: in the press section of the room that we were
Speaker 12: watching history. You don't often have a sense that you're
Speaker 12: going to be telling, you know, your grandkids like I
Speaker 12: was there. I was in the room.
Speaker 1: Ted Olsen remembers the atmosphere as one of spectacle and
Speaker 1: high stakes.
Speaker 2: The entire world was watching. The Supreme Court was surrounded
Speaker 2: by the satellite trucks of the various broadcast networks. The
Speaker 2: court was filled with political figures, members of the United
Speaker 2: States Senate, journalists and people all over the world were
Speaker 2: watching and listening.
Speaker 1: Despite having argued before the Supreme Court on thirteen other occasions,
Speaker 1: Olsen found that he was not immune to the pressure.
Speaker 2: You cannot imagine a more tense, pressure packed moment than
Speaker 2: standing up in front of the all of those people
Speaker 2: and the nine justices, with all of that at stake,
Speaker 2: and I think all of us felt. For God's sakes,
Speaker 2: I hope I can get these words out. One of
Speaker 2: the lawyers made a mistake of three times, I think
Speaker 2: he did, called the justices by the wrong.
Speaker 18: Name, Justice Bar.
Speaker 5: What I'm saying is is then I'm just a suitor.
Speaker 1: You better cut that out.
Speaker 4: I will now give up.
Speaker 2: Your adrenaline is going to be pumping through you. So
Speaker 2: anybody says, are you nervous, of course you're nervous. And
Speaker 2: if you're not nervous, you're not a sentient human being
Speaker 2: or a lawyer. So you have to focus on what
Speaker 2: you're saying. You have to focus on what the justices
Speaker 2: are saying. When they interrupt you, and they interrupt you constantly.
Speaker 18: No, I don't think.
Speaker 23: It's necessary a reliance on you really are not relying
Speaker 23: on those.
Speaker 18: Well, I think those cases support the argument.
Speaker 21: But as we said, if you got to choose one
Speaker 21: version of the word legislature or the.
Speaker 18: Other, I think in different contexts, it's not necessarily necessarily
Speaker 18: the case. And certainly it is.
Speaker 23: True that legislatures.
Speaker 1: As the hearing were on the main thing, anyone was
Speaker 1: listening for recluse as to how the two swing justices
Speaker 1: O'Connor and Kennedy were thinking about the case. O'Connors, how
Speaker 1: the baffled that canvassing boards wouldn't just use ballot standards
Speaker 1: that were based on the instructions that voters received an
Speaker 1: election day.
Speaker 8: Well, why isn't this standard the one that voters are
Speaker 8: instructed to follow for goodness sake? So, I mean, it
Speaker 8: couldn't be clear. Why don't we go.
Speaker 1: There was something else bothering O'Connor to the Florida Supreme
Speaker 1: Court had not responded in any way to the Supreme
Speaker 1: Court's remand and request for clarification on their earlier ruling.
Speaker 8: And I did not find a really response by the
Speaker 8: Florida Supreme Court to this Court's remand in the case
Speaker 8: a week ago, it just seemed to kind of bypass
Speaker 8: sit and assume that all those changes in deadlines were
Speaker 8: just fine, and they'd go ahead and adhere to them.
Speaker 25: And I found out troublesome, your honor, if I could.
Speaker 1: It was about nineteen minutes into oral arguments when the
Speaker 1: issue of equal protection entered the discussion. But it wasn't
Speaker 1: Ted Olson who brought it up. It was Justice Kennedy.
Speaker 23: Well, and I thought your point was that the process
Speaker 23: is being conducted in violation of the equal protection clause,
Speaker 23: and is its standards and.
Speaker 18: The due process clause, and what we know is now
Speaker 18: Kennedy latched onto the issue and tried to get answers
Speaker 18: from David Boys, But because the equal protection argument had
Speaker 18: been such a small part of the Bush brief, Boys
Speaker 18: had spent most of his time preparing to talk about
Speaker 18: other aspects of the case.
Speaker 25: I think there is a uniform standard. The standard is
Speaker 25: whether or not the intent of the voter is reflected
Speaker 25: by the ballot. That is the uniform standard that throughout.
Speaker 23: Very general it runs throughout the law. Even the dog
Speaker 23: knows the difference in being stumbled over and being kicked
Speaker 23: me know it now? You would say that, from the
Speaker 23: standpoint of equal protection clause, could each county give their
Speaker 23: own interpretation to what intent means, so long as they
Speaker 23: are in good faith and with some reasonable basis finding intent?
Speaker 19: I think could that vary from county to county.
Speaker 25: I think it can vary from individual to individual.
Speaker 1: The sudden focus on equal protection was surprising and those
Speaker 1: Kennedy who brought it up. Other justices seem to share
Speaker 1: his concern, and not just the conservative ones either.
Speaker 10: And why this question of equal protection for all Florida
Speaker 10: voters keeps coming up.
Speaker 26: Because Justice Sooner was saying, I'm troubled by this.
Speaker 2: Justice Kennedy is troubled by this.
Speaker 4: Justice Bryer is troubled by this now.
Speaker 18: So I think that was something that really.
Speaker 1: There was something weird about the equal protection claim. Though
Speaker 1: the Bush team was applying it narrowly to the problem
Speaker 1: of inconsistent hand recounts in Florida, its premise was that
Speaker 1: there was something wrong with the decentralized way in which
Speaker 1: all American elections are carried out. Taking the argument to
Speaker 1: its logical conclusion, the country's entire electoral sism them was
Speaker 1: one big violation of equal protection in any event. By
Speaker 1: the time oral arguments came to a close, it was
Speaker 1: clear that the Court would be treating the equal protection
Speaker 1: argument as much more than a sideshow. But how exactly
Speaker 1: they would respond to it was anyone's guess. The nine
Speaker 1: justices met in their conference room to figure out who
Speaker 1: stood where. Stevens and Ruth Bader Ginsburg felt strongly that
Speaker 1: the Court should allow the recount to resume, but Kennedy
Speaker 1: was still focused on Bush's equal protection argument, and it
Speaker 1: appeared that two of his more liberal colleagues, Stephen Bryer
Speaker 1: and David Souter, were hung up on it as well.
Speaker 21: And they both indicated that their feeling it was a
Speaker 21: possible violation. And I had never been able to understand.
Speaker 1: Why Stevens tried to propose a compromise. If most of
Speaker 1: his colleagues agreed that the varying standards for conducting recounts
Speaker 1: were a violation of equal protection, why not send the
Speaker 1: case back to the Florida Supreme Court and asked them
Speaker 1: to come up with one on statewide standard for judging
Speaker 1: voter intent. That way, the recount could resume and proceed fairly.
Speaker 1: But the conservatives on the Court didn't think that prolonging
Speaker 1: the process was an option. It was simply too late.
Speaker 1: The deadline for ceding Florida's electors was December twelfth. That
Speaker 1: was the very next day. Justice O'Connor in particular, was
Speaker 1: worried that if the case went back to the Florida
Speaker 1: Supreme Court now, the dispute over electors could enter truly
Speaker 1: uncharted territory.
Speaker 9: Justice O'Connor said, this is a mess. We got to
Speaker 9: stop it now because if we don't stop it now,
Speaker 9: it's going to go on and on, and it's going
Speaker 9: to get worse and Bush is going to win in
Speaker 9: the end.
Speaker 1: Anyways, not everyone thought the situation was so dire. Stevens, Briar, Suitor,
Speaker 1: and Ginsburg all believed that something could still be done
Speaker 1: in Florida, or at least they believed that it wasn't
Speaker 1: the Supreme Court's job to make that call. Why did
Speaker 1: you think there was time? And they didn't think there
Speaker 1: was time.
Speaker 21: Well, I didn't really feel I had the capacity to
Speaker 21: decide that issue. But if the Florida Supreme Court thought
Speaker 21: it could be worked out, which should let them be
Speaker 21: given a try.
Speaker 1: What ensued was a tug of war, with some members
Speaker 1: of the Court planting their feet and trying to pull
Speaker 1: their colleagues over to their side. The hope was to
Speaker 1: come up with a ruling that wouldn't divide the Court
Speaker 1: on a partisan basis. To that end, Kennedy and O'Connor
Speaker 1: decided to collaborate on an opinion reflecting whatever shreds of
Speaker 1: consensus were available in it. They would argue that the
Speaker 1: statewide recount was a violation of equal protection, a position
Speaker 1: that seven of the justices seemed to agree with. The
Speaker 1: problem was that two of those seven, Brier and Suitor,
Speaker 1: thought the state wide recount could still be revived under
Speaker 1: a uniform ballot standard, while the other five thought the
Speaker 1: game was over. That meant the justices were still divided
Speaker 1: five to four on whether the recount had to end.
Speaker 1: Compromise would have been nice, but it wasn't.
Speaker 14: Necessary, okay. Also, standing by the moment.
Speaker 4: Of truth, it is the moment of truth.
Speaker 25: The Supreme Court may use this moment to determine who
Speaker 25: is the next president of the United States.
Speaker 15: There are many ways this decision could go.
Speaker 1: The Supreme Court handed down its ruling in Bush v.
Speaker 1: Gore at ten pm on December twelfth, the same day
Speaker 1: as the deadline for seating Florida's electors Saturday. The Court
Speaker 1: printed copies of the sixty five page decision and stacked
Speaker 1: them on a table in the press office for the taking.
Speaker 1: Journalists grab copies and sprinted outside to waiting TV cameras.
Speaker 13: The Supreme Court decision from Florida is now out.
Speaker 10: Let's go straight to the court because ABC's Jackie Judd
Speaker 10: and Jeffrey Tubman are standing by.
Speaker 6: The Peter.
Speaker 1: If you can, I will, let me give you the
Speaker 1: typical Supreme Court opinion starts with the summary, helpful guide
Speaker 1: to relevant constitutional questions and how they've been decided. But
Speaker 1: because the Court's ruling on Bush v. Gore had been
Speaker 1: and so quickly, there was no time for that kind
Speaker 1: of sign posting. That made interpreting the decision rather difficult.
Speaker 27: So we're going to have to keep shifting through this decision.
Speaker 27: It is extremely complicated, with all these concurrences and descents and.
Speaker 4: The phrasing of it.
Speaker 26: It's very badly written, to tell you the truth, and
Speaker 26: it sounds Parnie.
Speaker 10: Let's work through this as carefully as we can.
Speaker 16: But let me get to the bottom line here the
Speaker 16: judgment of the Supreme Court of Florida is reversed.
Speaker 1: The majority opinion was signed procurium, meaning by the court. Usually,
Speaker 1: this was a sign that a decision was uncontroversial, and
Speaker 1: it was meant to indicate that the Court was speaking
Speaker 1: in one voice. But this opinion was not so straightforward.
Speaker 1: On the one hand, it said that seven justices agreed
Speaker 1: that the statewide recount was a violation of equal protection.
Speaker 1: But the far more consequential takeaway from the opinion was
Speaker 1: that a majority of the court, five out of the
Speaker 1: nine justices, thought the recount had to be shut down
Speaker 1: no matter what.
Speaker 24: And it seems that this really clearly is a victory
Speaker 24: for Governor Bush.
Speaker 21: I read this to say, here's the bottom line.
Speaker 13: We've reversed the Supreme Court opinion of Florida. This election
Speaker 13: is over.
Speaker 1: According to Gore lawyer David Boyce, some of his colleagues
Speaker 1: initially thought that the Court's decision was not necessarily the
Speaker 1: end of the line.
Speaker 15: There was still some hope among some members of the
Speaker 15: Gore camp that we could continue the fight in Florida,
Speaker 15: that we could try to get the vote count we started.
Speaker 15: But at one point al Gore asked me what I thought,
Speaker 15: and I said, it was wrong to shoot you, but
Speaker 15: you're still dead. There's no coming back from this.
Speaker 5: And in the end, what we had was a collision
Speaker 5: between the calendar and the fourteenth Amendment of the Constitution
Speaker 5: guaranteeing equal protection under the law.
Speaker 1: As someone who teaches these issues, I would say this
Speaker 1: is probably the most significant decision in thirty years.
Speaker 14: We've had an appeal, we've taken that appeal.
Speaker 3: There is no appeal from the United States Supreme Court.
Speaker 1: The idea of a conservative majority rallying around equal protection
Speaker 1: seemed absurd many liberal court watchers. Equal protection was maybe
Speaker 1: the most revered legal tenet of progressives, the centerpiece of
Speaker 1: landmark civil rights decisions like Brown v. Board of Education
Speaker 1: and Loving v. Virginia. Justice Ginsberg, who pioneered the use
Speaker 1: of equal protection arguments in fighting sex discrimination, was particularly horrified.
Speaker 1: While drafting her dissenting opinion, Ginsburg included a footnote saying
Speaker 1: that if there was any equal protection violation at work
Speaker 1: in Florida, it was the disenfranchisement of African American voters.
Speaker 1: She was referencing reports of voter suppression, including efforts to
Speaker 1: purge felons from Florida's voter roles. Justice Scalia read the
Speaker 1: footnote in a draft of Ginsburg's assent and accused her
Speaker 1: of using al Sharpton tactics. Ginsburg gruented and took it out. Meanwhile,
Speaker 1: Justice Stevens decided to articulate his frustration in a descent
Speaker 1: of his own. Here he is reading from the last paragraph.
Speaker 21: Time will one day heal the wound to that conference
Speaker 21: that will be inflicted by today's decision. One thing, however,
Speaker 21: is certain, although it will remain never know with complete certainty,
Speaker 21: the identity of the winner of this year's presidential election,
Speaker 21: the identity of the loser is perfectly clear. It is
Speaker 21: a nation's confidence in the judge as an impartial guardian
Speaker 21: of the rule of law. I respectively dissent. No, that's true.
Speaker 21: I think I hit it right out of the head.
Speaker 1: There was one more important and unusual thing about the
Speaker 1: Court's decision in Bush v.
Speaker 13: Gore.
Speaker 1: It didn't set any precedent.
Speaker 20: The justices, in a highly unusual move, said their ruling
Speaker 20: is limited to the present circumstances only, meaning.
Speaker 1: Justice O'Connor was always cognizant of downstream effects of the
Speaker 1: Court's actions, and during the drafting process in Bush v. Gore,
Speaker 1: she told Kennedy that she wanted it to be clear
Speaker 1: that the Court was only responding to the specific facts
Speaker 1: of the case at hand, and so they added a
Speaker 1: sentence stipulating just that and acknowledging that the problem of
Speaker 1: equal protection and election processes generally presents many complexities. To critics,
Speaker 1: it sounded like the majority was basically admitting that the
Speaker 1: equal protection argument did not deserve to be taken seriously.
Speaker 1: Here again is Dahalialithwick.
Speaker 12: I do remember absolutely being shocked by the Court having
Speaker 12: to explicitly say in the manner of mission impossible, like
Speaker 12: this is going to disappear in a poof of smoke
Speaker 12: in ten seconds. So read it quickly because it doesn't
Speaker 12: stand for everything. For me, that was anathema to what
Speaker 12: the court does. You know, the Court sets out clear
Speaker 12: lasting precedent to guide the next case. It doesn't say, like, dudes,
Speaker 12: we were totally painted into a corner and so we're
Speaker 12: going to make some stuff up and good luck. And
Speaker 12: so I remember that being to me. The thing that
Speaker 12: grabbed me by the throw was they don't even have
Speaker 12: the courage of their own convictions, much less you know
Speaker 12: that the ability to resolve this in any binding, precedential way.
Speaker 17: Peter Tonight al Gore's age describe him as calm, at
Speaker 17: peace with himself and his decision, and very focused on
Speaker 17: his task tonight to do his part to unite the country.
Speaker 1: On December thirteenth, thirty six days after election day, al
Speaker 1: Gore gave a televised address in which he conceded the
Speaker 1: two thousand election for a second and final time.
Speaker 4: Good evening.
Speaker 16: Just moments ago, I spoke with George W. Bush and
Speaker 16: congratulated him on becoming the forty third president of the
Speaker 16: United States, and I promised him that I wouldn't call
Speaker 16: him back this time. Now the US Supreme Court has spoken,
Speaker 16: let there be no doubt. While I strongly disagree with
Speaker 16: the Court's decision, I accept it. I accept the finality
Speaker 16: of this outcome, which will be ratified next Monday in
Speaker 16: the Electoral College.
Speaker 1: Later, George W. Bush offered a few conciliatory remarks of
Speaker 1: his own.
Speaker 11: Vice President Gore and I put our hearts and hopes
Speaker 11: into our campaigns. We shared some emotions, so I understand
Speaker 11: how difficult this moment must be for Vice President Gore
Speaker 11: and his family.
Speaker 1: The only thing left to do was make it official.
Speaker 1: On December eighteenth, Florida's presidential electors gathered at the State
Speaker 1: House in Tallahassee. As expected, all twenty five Republican electors
Speaker 1: voted for George W. Bush, while his brother Jeb looked on.
Speaker 2: Thank you for your attendance and cooperation and fulfilling this
Speaker 2: awesome duty.
Speaker 13: This meeting of the presidential electors is now adjourned.
Speaker 2: Thank you all very much.
Speaker 19: God blessed.
Speaker 1: In Washington the task of officially presiding over the Electoral
Speaker 1: College TWI felt in none other than al Gore, whose
Speaker 1: position as vice president also made him the president of
Speaker 1: the Senate.
Speaker 16: The whole number of the electors appointed to vote for
Speaker 16: President of the United States as well, the.
Speaker 27: Third vice president in history to preside over the certification
Speaker 27: of his own defeat.
Speaker 4: George W.
Speaker 16: Bush of the State of Texas has received for President
Speaker 16: of the United States two hundred and seventy one v.
Speaker 16: Al Gore of the State of Tennessee has received two
Speaker 16: hundred and sixty six votes. May God bless our new
Speaker 16: president and our new Vice President, and may God bless
Speaker 16: the United States of America.
Speaker 1: When the election was finally over and Bush was inaugurated
Speaker 1: as president, it seemed like the stage was set for
Speaker 1: Sandrad O'Connor to announce that she was stepping down from
Speaker 1: the court, but she didn't. According to Devin Thomas, she
Speaker 1: felt that her role in putting Bush in the White
Speaker 1: House made retirement untenable.
Speaker 9: The standard wisdom is that she voted for Bush so
Speaker 9: that she could retire because she wanted to retire, because
Speaker 9: it sounded like that's what they wanted to do based
Speaker 9: on that dinner party outburst. But in fact the opposite
Speaker 9: is true. Because she voted for Bush, she knew that
Speaker 9: she could not retire. It would look like the fix
Speaker 9: was in that She knew that it would look like
Speaker 9: she voted for Bush so that she could retire. So
Speaker 9: she said to her family, look, no white House events.
Speaker 9: We're not gonna hang around with a Bush family. We're
Speaker 9: not retiring. And she didn't, not for another five years
Speaker 9: until her husband's Alzheimer's was so bad she felt she
Speaker 9: had to retire.
Speaker 1: As John's Alzheimer's worsened, O'Connor often brought him to the
Speaker 1: court with her. He sat on the couch in her
Speaker 1: office reading the newspaper while she worked. When he occasionally
Speaker 1: wandered off, Supreme Court guards were always around to keep
Speaker 1: an eye on him. Meanwhile, the Supreme Court's docket filled
Speaker 1: up with cases that touched on Bush administration policy. These
Speaker 1: were major cases about affirmative action, the right to die,
Speaker 1: the rights of prisoners at Guantanama Bay. And if anyone
Speaker 1: still believed that the two thousand election had been low stakes,
Speaker 1: the string of decisions that came out of the Supreme
Speaker 1: Court in its aftermath served as a reminder of just
Speaker 1: how much had been on the line. When O'Connor finally
Speaker 1: retired in two thousand and five, she was replaced with
Speaker 1: Samuel Alito, a relentlessly conservative justice whose arrival shifted the
Speaker 1: ideological balance of the court. In private, O'Connor expressed deep
Speaker 1: frustration with Alito, and she watched with disappointment as the
Speaker 1: court tilted away from her doctrine on abortion rights, affirmative action,
Speaker 1: and a host of other issues.
Speaker 12: She was so full of regret that she, you know,
Speaker 12: immediately on her retirement and being replaced by Alito and
Speaker 12: watching all of the doctrine that she had had her
Speaker 12: thumbprint on got erased. Within like two years. You know,
Speaker 12: every place in which she had been the decider goes
Speaker 12: the other way. And I think she really did feel
Speaker 12: as though she couldn't say it out loud, but that
Speaker 12: she had done something like catastrophically bad for the country
Speaker 12: that she didn't know how to make reparations for. And
Speaker 12: I think, much more so than anyone else, she really
Speaker 12: carried that around with her.
Speaker 1: In twenty thirteen, for the first time ever, O'Connor publicly
Speaker 1: expressed second thoughts about the ruling in Bush v.
Speaker 18: Gore.
Speaker 1: The Supreme Court probably added to the problem. At the
Speaker 1: end of the day, she told the Chicago Tribune. Maybe
Speaker 1: she said the Court shouldn't have even taken the case
Speaker 1: in the first place. Five years later, Justice O'Connor announced
Speaker 1: that she was suffering from dementia, most likely Alzheimer's, and
Speaker 1: she retired from public life. She died in twenty twenty
Speaker 1: three at the age of ninety three. In the wake
Speaker 1: of al Gore's concession, a handful of news organizations went
Speaker 1: back to Florida's ballots and tried to figure out whether
Speaker 1: the right person had been elected president.
Speaker 24: The count of more than sixty one thousand punch carts
Speaker 24: optical scan even handwritten votes tallied by a team from
Speaker 24: the Miami Herald, USA Today and a private accounting firm.
Speaker 1: The first major result was released by a consortium of
Speaker 1: news papers that included USA Today and the Miami Herald.
Speaker 1: It came out in April two thousand and one, about
Speaker 1: two and a half months into George W. Bush's presidency.
Speaker 1: The study gamed out what would have happened if the
Speaker 1: recount mandated by the Florida Supreme Court had been allowed
Speaker 1: to continue. It looked at possible outcomes under four different
Speaker 1: ballot standards, ranging from the most lenient to the most strict,
Speaker 1: under vote ballots.
Speaker 24: Those now famous hanging, dimpled and pregnant chads.
Speaker 1: Ironically, the study found that Gore would have only won
Speaker 1: under the strictest standard, and even then the margin would
Speaker 1: have only been three votes.
Speaker 24: So Gore wins using a strict vote counting method, he
Speaker 24: did not support Bush wins using a more liberal method
Speaker 24: he opposed.
Speaker 1: A second major post mortem of the election came out
Speaker 1: just after its first anniversary. This one was the product
Speaker 1: of a million dollar effort that included The New York Times,
Speaker 1: The Washington Post, The Wall Street Journal, The Saint Petersburg
Speaker 1: Times and the Palm Beach Post Together they commissioned a
Speaker 1: non partisan research institute at the University of Chicago to
Speaker 1: spend ten months going through the one hundred and seventy
Speaker 1: five thousand undervotes and over votes from Florida.
Speaker 27: Trained coders, often operating in teams, viewed but did not touch,
Speaker 27: disputed ballots and wrote down what they saw.
Speaker 1: According to that study, if every undervote and over vote
Speaker 1: in Florida had been examined by hand, Gore would have
Speaker 1: won the state by a slim margin.
Speaker 27: Under those circumstances, Gore would have gained to a plus
Speaker 27: one hundred and seventy one largely.
Speaker 1: But as the news organizations themselves acknowledged, this was neither
Speaker 1: here nor there. Though it may have been true in theory,
Speaker 1: there had pretty much never been a scenario in which
Speaker 1: all of Florida's undervotes and overvotes were going to be counted.
Speaker 1: If you imagine the thirty six days after election day
Speaker 1: as a choose your own adventure, there was just no
Speaker 1: fork in the road when that was a serious possibility.
Speaker 1: Even before it was published, an LA Times editor was
Speaker 1: quoted saying that it was entirely possible that most readers
Speaker 1: would look at the report and yawn. The Saint Petersburg
Speaker 1: Time Times asked whether anyone other than political junkies would care.
Speaker 1: In The Washington Post, media critic Howard Kurtz said the
Speaker 1: recount now felt like some distant Civil war battle. There
Speaker 1: was good reason to be skeptical about the public's appetite
Speaker 1: for relitigating the election. Maybe you've already done the math
Speaker 1: in your head, But the first anniversary of November two
Speaker 1: thousand was November two thousand and one, So two months
Speaker 1: after the September eleventh attacks.
Speaker 27: Try to remember the kind of September we just had.
Speaker 27: What consumed us last December is a paragraph for history now.
Speaker 1: A reason George Bush's approval rating was close to ninety percent.
Speaker 1: A poll published in early November showed that if the
Speaker 1: election was held again, Bush would beat Gore nationally by
Speaker 1: twenty six points. Even Gore's former campaign chairman, Bill Day
Speaker 1: said that anyone who was still speculating what the election
Speaker 1: results was wasting their breath. On the editorial page of
Speaker 1: the Tampa Tribune, both parties received praise for showing restraint
Speaker 1: at a time when the core temperature of the former
Speaker 1: World Trade Center still hovered near one thousand degrees in
Speaker 1: subsequent years. Whenever anyone asked Justice Antonin Scalia about the
Speaker 1: Court's decision in Bush v. Gore, he would respond, get
Speaker 1: over it. In his book on Justice O'Connor, Evan Thomas
Speaker 1: reported that Scalia privately referred to the equal protection argument
Speaker 1: used to end the Florida recount as a piece of shit.
Speaker 1: Fiasco is a production of Prolog Projects, and it's distributed
Speaker 1: by Pushkin Industries. The show is produced by Andrew Parsons,
Speaker 1: Madeline kaplan Ula Culpa, and me Leon Nathan. Our script
Speaker 1: editor was Daniel Riley. Our editorial consultant was Camilla Hammer,
Speaker 1: and we received additional editorial support from Lisa Chase. Our
Speaker 1: music and score are by Nick Silvester of god Mode,
Speaker 1: with additional music from Alexis Quadrado. Our theme song is
Speaker 1: by Spatial Relations. Our artwork is by Teddy Blanks at
Speaker 1: Chips and y Audio, mixed by Rob Buyers, Michael Raphael
Speaker 1: and Johnny Vince Evans. A final Final V two special
Speaker 1: thanks to Luminary for a list of books, articles, and
Speaker 1: documentaries that we relied on in our research. Click the
Speaker 1: link in the show notes. Thanks to c SPAN, NBC
Speaker 1: News Archive, CNN and Channel twenty and Palm Beach for
Speaker 1: the archival material you heard in today's show. Thanks for listening.
Speaker 23: I don't know