FiascoThe late Supreme Court Justice John Paul Stevens talks about his memories of Bush v. Gore, and why the ruling’s legacy, years after the fact, looks even worse than he thought it would.
Pushkin. Do you think the majority believed that there was this equel protection thing or was there something else motivating them?
I have no idea. They must have believed in it because they said it out in the opinion, but I really find the opinion on persuasive.
Hey fiasco listeners, Welcome to the final bonus episode of Bush v.
Gore.
As I've mentioned, we interviewed about sixty people for this series. For obvious reasons, many of them were in Florida. We traveled there for ten day blitz and tried to meet our interview subjects in places that were convenient for them, and for the most part, bat 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 ninety nine. The person who arranged the interview was Justice Stevens's 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.
To meet you. Oh, thank you for seeing us.
I'm happy to do where.
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 at a polo, A true retiree.
Yes, well, let me walk him around.
And Stevens passed away in twenty nineteen. 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 Bryer at a party.
And I asked him how he felt about the issue, and he said the same action that I did, that there was no basis for us for interfering with the recount because there was something of Florida courts could do, and that there had been no showing of irreparable damage. We chat about a short time at that party.
At conference the next day, Stevens and Bryer 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 addressing this issue in this way would hurt the Court's reputation, how well the Court generally avoids unnecessarily participating in political controversies. And I thought, here it was entering into uncharged territory.
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.
I don't remember anticipating that. I really I think I felt that the case had already been decided.
You felt it was already a fatal company.
Because there was no reason to grant a stay otherwise. That was about an inappropriate decision in an extraordinary remedy motion case that I can remember.
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 from you why did you think there was impossible for there to be a reparable harm from the counting continuing.
Well, the burden is on the petition to demonstrate irreparable harm, and I didn't think they had done that. I don't think that the movement bore his Harry sustained his burden, And it didn't seem to me that getting the right answer in a contested election could ever be an irreal harm. That's what you're what you're trying to do in elections.
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?
I really have very little memory of the equal protection issue being in the case, and I think I hardly mentioned it in my descent, it's just to me, in an equal protection case, there are two groups and you favor one group over the over the other, and that's the violation of equal protection. But there was no showing that any any practice in the election favored either of the Democrats or the Republicans. They just were random results, which I don't understand to violate the equal protection prohibition.
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 chats.
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 county because there's no showing that the disuniformity favored one side or the other. And so that's had very strange use of equal protection when you don't have a minority that's entered by the rule they lay and there's no evidence whatsoever that the use of either dimple chads or whatever kind of chad it favored either the Republicans or the Democrats. So there was no basis for an equal protection challenge.
Why did the majority think there was?
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. It's what the proper rule is.
To object to the statewide recount on equal protection grounds seems to me like it in the sense state it's an objection to all elections the way they normally happened.
Yes, I think that's right, And of course the case has never been followed. Then that's probably why it really is an exception from equal protection doctrine. That is traditionally applied.
Is it true that just as Suitor and Justice prior signed on to the notion that there was a possible violation of equal protection in the state wide they.
Did both, and they both indicated that their feelings that it was a possible violation. And I've never been able to understand why.
But they didn't join the majority on no question.
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 is Freme Court was the fact that the intended of the voter is a standard, and is a uniform standard, which tricked trace hair of both dimple chads and hanging chads and everything. If you can tell who who the voter intended to vote for, that is both the sensible standard and one that can be administered.
Did you ever look at one of those ballots and see what the dimples look like?
I really didn't.
I think that. 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, they that's that could be They thought about voting for that person and they decided not to.
Well, I don't think. I don't think in those countroversies the question was who was who the voter intended to vote for. The question was whether the dimple was a sufficient evidence of that. But I don't think they were. As far as I can remember, I don't remember any controversies of individual balance being ambiguous as to as to the intent of the voter.
More of my conversation with former Supreme Court Justice John Paul Stevens after the break.
Do you remember just going back to Justice Suitor and Justice Bryer's belief that there was a remedy here? What were they imagining?
What were they?
Yeah, what was the remedy they were imagining?
They thought that the Florida Supreme Court should more clearly state the intended as the best I can remember the intent of the voter standard, But they didn't think there was any necessarily obstacle to doing that.
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.
I have no idea.
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.
Yeah. Well I suppose that's right, But that's just speculation for me. Yeah.
Do you think the majority believed that there was this equal protection thing or was there something else motivating them?
I have no idea. They must have believed in it because they said it out in the opinion. But I really find the opinion on persuasive.
So I think to some people outside right, so 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.
Well, I can't comment on that. I just don't know that there was never any and never any such discussion of which I was aware.
Those are all my questions. Would you be willing to read from your descents a few things into the microphone. Would that be okay?
I guess so if you got the descent there.
I have them. Yeah. So it is.
Confidence and the men and women who administered 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 lesson, the identity of the loser is perfectly clear. Is the nation's confidence in the judge as an impartial guardian of the rule of law. I respected dissent, Now that's true. I think that's I think I hit it right on the head.
And to be clear, not having spoken to you, I gather you you didn't mean that the uh as you put it. But the nation's confidence in the judge is an impartial guardian of the rule of law. The reason that would be damaged was.
Why, because the Flora judges were not trusted to be capable of handling their own responsibilities. And then and they should be presumed to be a competent of intelligent people, and they and they undermine that assumption on the boat and the chiefs of his separate opinions saying that anything that didn't qualify for machine ballots should not be a legitimate vote, which the Court had set over and over again, but well at least at least more than once. And also the particular action they took in this case.
Can I tell you how I read it initially and how I think a lot of people read that line 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.
Well, I didn't mean it that way. I meant to say that their criticism of the impartiality of the Florida course would have that effect.
What mark did the ruling leave on the court in your view?
Well, I think it damaged a reputation of the Court because I think it's such an agregiously mistaken opinion. But we've had bad opinions over the years from time to time, but this one was especially bad.
So what what what mark did it leave on the court? I think there was a point where someone described it as a wound on the court.
Well, yeah, I think it was, and I think it's a wound from which they have not fully recovered. But that's the judgment others going to make as well as I can.
Can, just ask you to elaborate on why it costs such a wound.
Well, because it was an important case and it was the center of attention, and it did not comply with the standards of excellence the Supreme Court were normally does and should require.
And not because it was a partisan decision. But I think I think the common wisdom, right is that it damage the Court's reputation because it was a partisan decision. But that's is that not how you feel?
No, well, I suppose that may have been infected it to some extent, but it is basically was the poor quality of the decision that I think and the fact it showed disrespect for state court judges, which I think was an extremely unfortunate development from what French there. I don't think the court and judges generally have thoroughly recovered.
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, Well, I hadn't really thought about that, but it was pretty obvious anyway.
Yeah, what are people to make of the inclusion of this very unusual line.
Well, I guess it's just the same thing they make of granting a stay when there was no basis for Granning to stay. It's just an unfortunate development, and frankly, I think it undermined the published 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.
One last question for you, nineteen years later, is this ruling less of a tragedy than you thought at the time or more more?
I think it really 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 say, asked her what had happened?
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 Prolog Projects and distributed by Pushkin Industries. The show is produced by Mattelin, kaplan Ulla Culpa, Andrew Parsons, and me Leon Nafak. We had additional editorial support from Lisa Chase and Daniel Riley. Thanks for listening.
