Speaker 1: Pushkin. Do you think the majority believed that there was
Speaker 1: this equel protection thing or was there something else motivating them?
Speaker 2: I have no idea. They must have believed in it
Speaker 2: because they said it out in the opinion, but I
Speaker 2: really find the opinion on persuasive.
Speaker 3: Hey fiasco listeners, Welcome to the final bonus episode of
Speaker 3: Bush v.
Speaker 1: Gore.
Speaker 3: As I've mentioned, we interviewed about sixty people for this series.
Speaker 3: For obvious reasons, many of them were in Florida. We
Speaker 3: traveled there for ten day blitz and tried to meet
Speaker 3: our interview subjects in places that were convenient for them,
Speaker 3: and for the most part, bat meant spending a lot
Speaker 3: of time in law offices with glass enclosed conference rooms.
Speaker 1: And long wooden tables.
Speaker 3: But one of the interviews we did in Florida was
Speaker 3: a little different. Former Supreme Court Justice John Paul Stevens
Speaker 3: was living in a retirement community in Fort Lauderdale. He
Speaker 3: was about to turn ninety nine. The person who arranged
Speaker 3: the interview was Justice Stevens's daughter, Sue. We waited for
Speaker 3: her in the lobby of the building, where the ceilings
Speaker 3: were high and everything seemed to be made of marble.
Speaker 3: After coming out to meet us. Sue took us over
Speaker 3: to her dad. He was sitting on a couch looking
Speaker 3: out a window. The first thing we saw as we
Speaker 3: approached was the back of his head.
Speaker 1: To meet you. Oh, thank you for seeing us.
Speaker 2: I'm happy to do where.
Speaker 3: It was a surreal moment. Here was someone whose impact
Speaker 3: on the country was so enormous, whose mind had brought
Speaker 3: about so much change and had affected so many people,
Speaker 3: and yet he was just sitting there, human sized, wearing
Speaker 3: khaki shorts at a polo, A true retiree.
Speaker 2: Yes, well, let me walk him around.
Speaker 3: And Stevens passed away in twenty nineteen. Today we want
Speaker 3: to share part of the conversation we had with him
Speaker 3: about his reflections on Bush v. Gore, in particular the
Speaker 3: equal protection claim made by the majority in the court.
Speaker 3: As you'll hear, Justice Stevens never expected the Supreme Court
Speaker 3: to play a role in the recount, and he didn't
Speaker 3: think there was any reason for the Court to get involved.
Speaker 3: But as you heard in episode six of our series,
Speaker 3: the Bush campaign asked the U. S. Supreme Court to
Speaker 3: stop or stay the process of recounting Florida's votes, arguing
Speaker 3: that it could cause irreparable harm to their candidate. The
Speaker 3: night before the Court met to discuss the stay, Justice
Speaker 3: Stevens ran into his colleague Stephen Bryer at a party.
Speaker 2: And I asked him how he felt about the issue,
Speaker 2: and he said the same action that I did, that
Speaker 2: there was no basis for us for interfering with the
Speaker 2: recount because there was something of Florida courts could do,
Speaker 2: and that there had been no showing of irreparable damage.
Speaker 2: We chat about a short time at that party.
Speaker 3: At conference the next day, Stevens and Bryer were blindsided
Speaker 3: when five of the other justices voted to grant the stay.
Speaker 3: Oral arguments in Bush v. Gore were just a few
Speaker 3: days away, and Stevens was.
Speaker 2: Horrified addressing this issue in this way would hurt the
Speaker 2: Court's reputation, how well the Court generally avoids unnecessarily participating
Speaker 2: in political controversies. And I thought, here it was entering
Speaker 2: into uncharged territory.
Speaker 1: Before oral arguments on Monday, did you think there was
Speaker 1: a possibility that anyone who had ruled in favor of
Speaker 1: the stay would be convinced to lift it.
Speaker 2: I don't remember anticipating that. I really I think I
Speaker 2: felt that the case had already been decided.
Speaker 1: You felt it was already a fatal company.
Speaker 2: Because there was no reason to grant a stay otherwise.
Speaker 2: That was about an inappropriate decision in an extraordinary remedy
Speaker 2: motion case that I can remember.
Speaker 1: The majority felt that continuing the counting would cause irreparable
Speaker 1: harm to candidate Bush and just I know that this
Speaker 1: answer might seem obvious to you, but can you just
Speaker 1: spell out from you why did you think there was
Speaker 1: impossible for there to be a reparable harm from the
Speaker 1: counting continuing.
Speaker 2: Well, the burden is on the petition to demonstrate irreparable harm,
Speaker 2: and I didn't think they had done that. I don't
Speaker 2: think that the movement bore his Harry sustained his burden,
Speaker 2: And it didn't seem to me that getting the right
Speaker 2: answer in a contested election could ever be an irreal harm.
Speaker 2: That's what you're what you're trying to do in elections.
Speaker 1: What did you make of the fact when you read
Speaker 1: the briefs from both sides, especially the Bush side, that
Speaker 1: they were suddenly focused on equal protection?
Speaker 2: I really have very little memory of the equal protection
Speaker 2: issue being in the case, and I think I hardly
Speaker 2: mentioned it in my descent, it's just to me, in
Speaker 2: an equal protection case, there are two groups and you
Speaker 2: favor one group over the over the other, and that's
Speaker 2: the violation of equal protection. But there was no showing
Speaker 2: that any any practice in the election favored either of
Speaker 2: the Democrats or the Republicans. They just were random results,
Speaker 2: which I don't understand to violate the equal protection prohibition.
Speaker 1: The argument, as I understood it, was that there was
Speaker 1: an equal protection violation because different counties in the state
Speaker 1: of Florida would be using different standards to count ballots,
Speaker 1: and so if you lived in a county where people
Speaker 1: were counting dimple chads, you had a different your vote
Speaker 1: counted more, say, than someone who lived in a county
Speaker 1: where they weren't counting dimple chats.
Speaker 2: Well, there are two answers to that. First of all,
Speaker 2: the law does not require a state to have the
Speaker 2: same kind of voting equipment in every polling place, and
Speaker 2: there's more variation between different kinds of counting machines than
Speaker 2: there is between the standards, and that has never been
Speaker 2: considered an equal protection violation. And if that's permissible, why
Speaker 2: isn't a difference in counties produced by something like a
Speaker 2: non uniform rule on county because there's no showing that
Speaker 2: the disuniformity favored one side or the other. And so
Speaker 2: that's had very strange use of equal protection when you
Speaker 2: don't have a minority that's entered by the rule they
Speaker 2: lay and there's no evidence whatsoever that the use of
Speaker 2: either dimple chads or whatever kind of chad it favored
Speaker 2: either the Republicans or the Democrats. So there was no
Speaker 2: basis for an equal protection challenge.
Speaker 1: Why did the majority think there was?
Speaker 2: If you can find out from their opinion, you're a
Speaker 2: miracle worker. It does not provide an explanation. Just generally
Speaker 2: said that the results are not completely uniform. But the
Speaker 2: equal protection clause doesn't have a requirement that everything has
Speaker 2: to be equal. They can't pick one side against another.
Speaker 2: It's what the proper rule is.
Speaker 1: To object to the statewide recount on equal protection grounds
Speaker 1: seems to me like it in the sense state it's
Speaker 1: an objection to all elections the way they normally happened.
Speaker 2: Yes, I think that's right, And of course the case
Speaker 2: has never been followed. Then that's probably why it really
Speaker 2: is an exception from equal protection doctrine. That is traditionally applied.
Speaker 1: Is it true that just as Suitor and Justice prior
Speaker 1: signed on to the notion that there was a possible
Speaker 1: violation of equal protection in the state wide they.
Speaker 2: Did both, and they both indicated that their feelings that
Speaker 2: it was a possible violation. And I've never been able
Speaker 2: to understand why.
Speaker 1: But they didn't join the majority on no question.
Speaker 2: Can you explain that why they didn't join them? Apparently, well,
Speaker 2: they thought the recount should go ahead, that even if
Speaker 2: there was a violation, that they should continue with the
Speaker 2: recount under uniform standards. They were not as clear as
Speaker 2: I think the Florida is Freme Court was the fact
Speaker 2: that the intended of the voter is a standard, and
Speaker 2: is a uniform standard, which tricked trace hair of both
Speaker 2: dimple chads and hanging chads and everything. If you can
Speaker 2: tell who who the voter intended to vote for, that
Speaker 2: is both the sensible standard and one that can be administered.
Speaker 1: Did you ever look at one of those ballots and
Speaker 1: see what the dimples look like?
Speaker 2: I really didn't.
Speaker 1: I think that. I think the controversy, right, was that
Speaker 1: three members of a county canvassing board could look at
Speaker 1: a single ballot and they'd see a dimple, and two
Speaker 1: of them might say, well, clearly that person tried to
Speaker 1: push the thing through and it didn't work, and the
Speaker 1: other one would say, no, no, they that's that could
Speaker 1: be They thought about voting for that person and they
Speaker 1: decided not to.
Speaker 2: Well, I don't think. I don't think in those countroversies
Speaker 2: the question was who was who the voter intended to
Speaker 2: vote for. The question was whether the dimple was a
Speaker 2: sufficient evidence of that. But I don't think they were.
Speaker 2: As far as I can remember, I don't remember any
Speaker 2: controversies of individual balance being ambiguous as to as to
Speaker 2: the intent of the voter.
Speaker 3: More of my conversation with former Supreme Court Justice John
Speaker 3: Paul Stevens after the break.
Speaker 1: Do you remember just going back to Justice Suitor and
Speaker 1: Justice Bryer's belief that there was a remedy here? What
Speaker 1: were they imagining?
Speaker 2: What were they?
Speaker 1: Yeah, what was the remedy they were imagining?
Speaker 2: They thought that the Florida Supreme Court should more clearly
Speaker 2: state the intended as the best I can remember the
Speaker 2: intent of the voter standard, But they didn't think there
Speaker 2: was any necessarily obstacle to doing that.
Speaker 1: What do you think would have happened if the Florida
Speaker 1: Supreme Court had created a uniform standard and they had said, Okay,
Speaker 1: dimples count or they don't count. Would that have been
Speaker 1: struck down by the Bush people as a new law,
Speaker 1: just like the certification deadline had been.
Speaker 2: I have no idea.
Speaker 1: It seemed like a trap a little bit. It says
Speaker 1: you can't make up a new law, and you don't
Speaker 1: have a standard, and you need a standard. But a
Speaker 1: new standard would be a new law.
Speaker 2: Yeah. Well I suppose that's right, But that's just speculation
Speaker 2: for me. Yeah.
Speaker 1: Do you think the majority believed that there was this
Speaker 1: equal protection thing or was there something else motivating them?
Speaker 2: I have no idea. They must have believed in it
Speaker 2: because they said it out in the opinion. But I
Speaker 2: really find the opinion on persuasive.
Speaker 1: So I think to some people outside right, so many
Speaker 1: Americans who saw this unfold, they see the same things
Speaker 1: you see, and they go to the very simple explanation
Speaker 1: that the five justices wanted Bush to win.
Speaker 2: Well, I can't comment on that. I just don't know
Speaker 2: that there was never any and never any such discussion
Speaker 2: of which I was aware.
Speaker 1: Those are all my questions. Would you be willing to
Speaker 1: read from your descents a few things into the microphone.
Speaker 1: Would that be okay?
Speaker 2: I guess so if you got the descent there.
Speaker 1: I have them. Yeah. So it is.
Speaker 2: Confidence and the men and women who administered the judicial
Speaker 2: system that is the true backbone of the rule of law.
Speaker 2: Time will one day heal the wound to that confidence
Speaker 2: that will be inflicted by today's decision. One thing, however,
Speaker 2: is certain, Although we may never know with complete certainty
Speaker 2: the identity of the winner of this year's presidential lesson,
Speaker 2: the identity of the loser is perfectly clear. Is the
Speaker 2: nation's confidence in the judge as an impartial guardian of
Speaker 2: the rule of law. I respected dissent, Now that's true.
Speaker 2: I think that's I think I hit it right on
Speaker 2: the head.
Speaker 1: And to be clear, not having spoken to you, I
Speaker 1: gather you you didn't mean that the uh as you
Speaker 1: put it. But the nation's confidence in the judge is
Speaker 1: an impartial guardian of the rule of law. The reason
Speaker 1: that would be damaged was.
Speaker 2: Why, because the Flora judges were not trusted to be
Speaker 2: capable of handling their own responsibilities. And then and they
Speaker 2: should be presumed to be a competent of intelligent people,
Speaker 2: and they and they undermine that assumption on the boat
Speaker 2: and the chiefs of his separate opinions saying that anything
Speaker 2: that didn't qualify for machine ballots should not be a
Speaker 2: legitimate vote, which the Court had set over and over again,
Speaker 2: but well at least at least more than once. And
Speaker 2: also the particular action they took in this case.
Speaker 1: Can I tell you how I read it initially and
Speaker 1: how I think a lot of people read that line
Speaker 1: that you were saying that the nation's confidence in the
Speaker 1: judge is an impartial guardian of the rule of law
Speaker 1: was undermined because the majority in the Supreme Court had
Speaker 1: ruled in a way that was not impartial.
Speaker 2: Well, I didn't mean it that way. I meant to
Speaker 2: say that their criticism of the impartiality of the Florida
Speaker 2: course would have that effect.
Speaker 1: What mark did the ruling leave on the court in
Speaker 1: your view?
Speaker 2: Well, I think it damaged a reputation of the Court
Speaker 2: because I think it's such an agregiously mistaken opinion. But
Speaker 2: we've had bad opinions over the years from time to time,
Speaker 2: but this one was especially bad.
Speaker 1: So what what what mark did it leave on the court?
Speaker 1: I think there was a point where someone described it
Speaker 1: as a wound on the court.
Speaker 2: Well, yeah, I think it was, and I think it's
Speaker 2: a wound from which they have not fully recovered. But
Speaker 2: that's the judgment others going to make as well as
Speaker 2: I can.
Speaker 1: Can, just ask you to elaborate on why it costs
Speaker 1: such a wound.
Speaker 2: Well, because it was an important case and it was
Speaker 2: the center of attention, and it did not comply with
Speaker 2: the standards of excellence the Supreme Court were normally does
Speaker 2: and should require.
Speaker 1: And not because it was a partisan decision. But I
Speaker 1: think I think the common wisdom, right is that it
Speaker 1: damage the Court's reputation because it was a partisan decision.
Speaker 1: But that's is that not how you feel?
Speaker 2: No, well, I suppose that may have been infected it
Speaker 2: to some extent, but it is basically was the poor
Speaker 2: quality of the decision that I think and the fact
Speaker 2: it showed disrespect for state court judges, which I think
Speaker 2: was an extremely unfortunate development from what French there. I
Speaker 2: don't think the court and judges generally have thoroughly recovered.
Speaker 1: There's a famous line in the majority opinion that says,
Speaker 1: our consideration is limited to the present circumstances, for the
Speaker 1: problem of equal protection in election processes generally presents many complexities.
Speaker 1: So they're saying this will not be precedent.
Speaker 2: Really, Well, I hadn't really thought about that, but it
Speaker 2: was pretty obvious anyway.
Speaker 1: Yeah, what are people to make of the inclusion of
Speaker 1: this very unusual line.
Speaker 2: Well, I guess it's just the same thing they make
Speaker 2: of granting a stay when there was no basis for
Speaker 2: Granning to stay. It's just an unfortunate development, and frankly,
Speaker 2: I think it undermined the published confidence in the court
Speaker 2: and in state courts generally, because the court really showed
Speaker 2: disrespect for the Florida Supreme Court, which I think was unjustified.
Speaker 1: One last question for you, nineteen years later, is this
Speaker 1: ruling less of a tragedy than you thought at the
Speaker 1: time or more more?
Speaker 2: I think it really really is an unacceptable decision, and
Speaker 2: I think the more I've thought about it, the more
Speaker 2: I've been puzzled about how it was reached and why.
Speaker 2: I just don't know. It's just something that seemed to
Speaker 2: be say, asked her what had happened?
Speaker 3: And that is it for this season of fiasco. We
Speaker 3: hope you enjoyed these bonus interviews. This will be our
Speaker 3: last episode for a little while, but keep an eye
Speaker 3: out for more seasons of Fiasco that we'll be putting
Speaker 3: in this feed.
Speaker 1: Fiasco Bush v.
Speaker 3: Gore is produced by Prolog Projects and distributed by Pushkin Industries.
Speaker 3: The show is produced by Mattelin, kaplan Ulla Culpa, Andrew Parsons,
Speaker 3: and me Leon Nafak. We had additional editorial support from
Speaker 3: Lisa Chase and Daniel Riley. Thanks for listening.