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Bush v. Gore


We'll here argument now number. O nine forty nine George W Bush and Richard Cheney versus Albert Gore at Al. Hey Everyone I'm Leon Nathan Co creator of slow-burn and fiasco. I'm here to introduce five to four a weekly Supreme Court. Podcast featuring America's most uncivil lawyers on today's show. Your hosts Peter Rihan. Michael are talking about a case that decided a presidential election Bush. V Gore story starts on election night. Two thousand Americans went to bed not knowing which candidate had won because the vote in Florida was too close to call a vote. So close that under Florida Law. It must be recounted the Gore campaign. They will fight this issue of the Florida ballots until every vote is clear the end. The Supreme Court effectively handed the presidency to George W Bush the rolling strikes down the Florida. Supreme Court Recount Plan as unconstitutional. This is five to four podcast about how much the Supreme Court sucks. Welcome to the inaugural episode of five to four a podcast about how much the Supreme Court sucks and the only Supreme Court podcast without a pending title nine investigation. That's right very proud of that. We are each episode. We're going to dissect one of the many Supreme Court decisions that make all of our lives just a little bit worse. Every single day and today is a big one Bush v Gore. Maybe the most shameless decision in Supreme Court history. But before we really dig and we WANNA to go around the room. Talk about who we are. Why we're doing this and how much we're getting paid. I Am Peter. Better known on twitter at least as the law boy. The world's dainty EST lawyer America's Dante lawyer there might be some told us. Yeah and I go to work. And instead of working I think of tweets about the law and politics. Yeah I'm Michael. I am a reformed corporate attorney and former election lawyer and now. I'm doing bigger and better things like podcasts podcasts. That's right an I'm Rhiannon I do public defense work in the south. Okay well. There's no need to get like we understand that they want a real life soap. Somebody's putting her degree to work to make the world a better place but we wanted to do this. Podcast for a few reasons. I think both the public and the legal profession have bestowed upon the Supreme Court. A completely unearned undeserved reverence. And there's an illusion that it's a political and independent and generally sort of above the fray when in reality it is deeply political deeply ideological and always has been and the result of this reverence is an institution that takes itself so seriously that Supreme Court justices where their robes in public just for no reason at all like if you watch the state of the Union. They're all just sitting there in robes like they're just like a completely different kind of person than anyone else. Where of fucking normal person imagine wearing your work uniform anywhere other than when you're GonNa have to imagine that you're fucking work. Uniform is a robe is a black dress. A judge okay. You're not a Deity. Just like rollover to fucking brooks brothers and do what we all do anyway. Did you guys want to do it for me? When I read opinions in the law generally feel like there's a or maybe not so subtle `gate-keeping aspect that goes on. Which is they are just laid in with like jargon and citations. That really are impossible to understand unless you've been trained on them. Gladden terms all sorts of legal terms of art and it gives them sort of an air of legitimacy where a layman trying to understand. What's going on would just be like not even understand where to start. The I tried to read a Supreme Court opinion. Start to finish law school. I spent like ten minutes reading something and being like. This is so weird. This is not like the casebooks who's syllabus. Which I didn't even know was a thing that exists rain. It's not a part of the formal opinion as a law student. I had no idea what I was doing. And how to work my way through it so if we want to do what we're setting out to do which is show everyone how much bullshit this all is. An important part of it is stripping away all the finery that the roads the no. I really like that framing of Lake. The this mythos and this idea that this stuff isn't accessible to the layman You know it serves everybody's career interest in and keeps those people kind of empower. There's just this idea that. The Supreme Court is a group of nine. Sage unbiased legal. Titans rate that they have these special knowledge and skills. They answer legal questions for the whole country. And they do it. Objectively so famously. Chief Justice John Roberts during his confirmation hearings he says right that like a view the role of the judge on the Supreme Court as an umpire and we just call balls and strikes rate when actually what the Supreme Court does is ideological judicial lawmaking all of the time and I think hopefully in the in the podcast we can kind of demystify that process a little bit and expose those contradictions. Yeah and show everyone that nine justices that compose the Supreme Court or not the smartest people in the country. Now we are so we wanted to start with Bush Feed Gore. Because I think it's the case that embodies the central thesis of this show which is that. The Supreme Court is driven by politics and ideology first and foremost and there is no greater representation of that then Bush v Gore a case in which the five Republican justices on the court tied themselves into knots to hand the election to George W Bush. It's two thousand now that the nineties have been pretty good to everyone and you have this sort of common election archetype of the Boring Guy Al Gore versus the idiot George W Bush. And it's like it's a very common type of election in America and It is a huge advantage to the idiot. That's right yeah but the one thing I'll also say is that Bush was dumb in a way that now seems like very quaint. Right where like he would say a word wrong. He would say strategically instead of strategy and people were like. Oh my God can this man really be president and that just seems so distant in a world where we have trump. Who's just like a character? You forgot about in the Sims wandering from room to room with like thought bubble with a picture of a hamburger in it alone has had like has never had a thought that was not a reaction to direct physical stimulus. Nowadays I yearn for a President. Who's like biggest issue is that he says like nuclear nuclear nuclear? Which by the way is that pretty much. Everyone I feel like I get. That was like the first time most people learned how to pronounce that word. We re we should start talking. What happens yeah no before we get to the lot? I WanNa be clear that I was on November seventh two thousand. I was twelve years old. I had just shaved my head. I'm in sixth or seventh grade Palestinian small little olive in Suburban Texas on election night. Did you do this When you were younger is like you color. In the Mapfre the states you colored blue or red for whoever goes yup and so I got. My memory is very vague. I can't overstate how important it was to me. At that time that I was a good student and so it fucked with me. It traumatized me that I had done red and then blue on Florida and I just thought like you know what I failed this assignment. I fucked up so it was. It was really traumatic Yeah so all the major networks that night they called Florida for Gore a big call to make CNN announces that we call Florida in the Al Gore Colorado. Now for Jack an important win for Vice President Al Gore. Nbc News Projects that he wins the twenty five electoral votes in the retractions started at around ten PM. We now believe the state of Florida is too close to call. It's weird. We in most other news services had called it for Mr Starr switching their calls to Bush. Yeah Projects George W Bush. The winner in Florida and dusted appears the winner of the presidency of the United States. By morning people. Wake up and it's it's undecided you twenty-five votes away from Al Gore and put it in the undecided column and should they break for Bush on November eight th the next day the Florida's division of elections. They say that Bush won by a really small margin It's like seventeen hundred votes which is less than the point. Five percent which which means basically that a mandatory recount is triggered and by November tenth. The machine recounts have brought that lead down to like around three hundred votes so It's it's a fucking mess is what it is. Gore requests Manual recounts in four counties. And the shit show just gets more intense from there in Palm Beach County for example Ten thousand ballots were were set aside because they recorded no vote for president at all in a Volusia county. They Record Gore receiving negative sixteen thousand votes. So it's like what the fuck turned out not to be an error. So he's not that popular attention even as like a child like a teenager. Witnessing this was just like peeking under the the veil of American politics and seeing like this horrible writhing mass beneath where like everything was deeply corrupt and inaccurate and full of just like human error and And dark motivations and like it was just the first time. I think that a light had been shined on this part of the system and it was like deeply unsettling to everyone. I was eighteen at this time and I lived in Fort Lauderdale in Broward County which was sort of ground zero for all of this. It was one of the four counties that were supposed to do a manual recount along with Miami Dade and a couple other Miami Dade Broward Palm Beach and Volusia each with more registered Democrat. I voted in the election so I do not know if my vote counted and they were just like bizarre protests and it was all anybody talked about. And it's hard to really explain what it's like to have that be your first electoral experience. Even before all the election against there was like the fifty thousand voters that got purged from the Florida voter rolls. Because you know. They are supposedly felons but it turns out. A lot of them weren't felons than maybe misdemeanors maybe no rhyme at all in their all black or Hispanic and one estimate says that cost Gore five thousand votes in an election. He lost by three votes. Like a lot of the mad is Is just inevitable in organic and you know. There's a lot of tension because people don't really know what's going to happen but some of it was just as manufactured bullshit most famously the quote Unquote Brooks Brothers Riot. I have a question What what is manage where store? I knew the question Yeah it's just a suiting suiting store. They know it's just It's like your standard bear made rain like mid to low range like the U. I should go to men's warehouse and then you realize that that's not nice enough for your Fans y'all actually like the way you look and then you go to brooks brothers to pay like seven hundred dollars for a suit that Some fucking idiot sells you and then great right there. That's not it's not at Brooks brothers. Ritz brothers was unscathed thankfully Basically what happened was in Miami. Dade there were these Ten thousand or so ballots under votes right. These ballots that hadn't recorded boats. And and we're getting close to one of the deadlines here and miami-dade is concerned about being able to recount all the votes. So they say well. We're going to look at these ten thousand ballots And they kind of retire to a smaller room so they can segregate them out and start manually assessing each ballot and there was a lot of concern that there would be enough votes for Gore in this in this batch to change the outcome of the election so Republicans flew in all these like forty to fifty year old lawyers. Of course they're like almost all lawyers and when we say Republicans like the actual Republican Party right in DC right now. This is like yeah. This is like Roger Stone. Who's like you know a fucking Republican rat fucker back into the seventies you know and Nixon guy and with the Nixon to right? That's right that's correct dresses like a villain in who framed Roger Rabbit. It's all Republican aides and lawyers. Who Fly in there all on their like blackberries. They're all new fancy suits Protesting and they get violent. They they're like punching people Someone from the DNC literally assaulted the and and they and they succeed. They shut down. This recount like two hours after they fucking very important to note that. This is the only successful riot in American history every every time that like like someone is protesting police violence or whatever they just get fucking wiped out with tear gas but fucking fifty Republican lawyers. Show up in Miami Dade and they're like well whatever they want window whatever they want just let us know immediately capitulate act exactly how they do with their wives and you know got. Oh Jesus I think it's good to talk about the riot because it It's a good preview for the next twenty years of Republican politics and the way they treat like elections generally democrats and the idea that you know any democratic efforts at like getting. Both counted are illegitimate. Yeah fraudulent and they can take whatever means you know necessarily their hands to shut that down all they gotta do. All they want to do is win elections so they don't have shit and maybe the most like emblematic aspect of how On its face corrupt. The entire process was is Katherine Harris. Who is the Florida Secretary of state and in her role as the Florida? Secretary of State is responsible for oversight of the elections and the certification of the results but she's also the CO chair of Bush's campaign in Florida. And you want to understand what type of person she is that she's another type of important American political archetype which is You know there are movies. About where the protagonist is like a mother and the anti-communist is a woman who is extremely mean and Through sheer belligerence and force of will dominates the local PTA. Yes and she wears like a little too much makeup. And you're like she just seems like a force of nature just plowing through everything in front of her at to get whatever she wants and At the expense of the Children. Act which is why this and I think this this archetype was made famous a few years later with Sarah Palin. Who's like the real Embodiment of it. And then you had a couple of hours like Michele Bachmann But you know I think Katherine Harris is the first time. Pta Mom was always like on the political scene in American in American Life. So she was the one that oversaw the purging of the voter rolls right on the on the grounds that they were extensively. Fallon's even though maybe not and you know and she's the one that sort of starts over like is like in charge of the oversight of this process and was just nakedly corrupt and favouring Bush at every single step like not even trying a little bit to hide it rent which I mean you know. Her boss was Bush's brother and they're both you know. Republican minor minor. Point Governor of Florida can have good all right at the time. Florida law required that votes. Be Certified within seven days of the election so The Florida Circuit Court ruled that Counties had to certify their their results but they could amend at a later date At the Secretary of State Katherine Harris's discretion So what happened. Was she issued criteria for these late filings and she asked that the counties that were late in filing that they provide their justifications for why they relate. That sounds fair. Yeah no. We'll cheap proceeded to reject them all outright and declare that she's going to certify the results the next day anyway. Florida's Secretary of State Katherine Harris has announced that she is rejecting any further at the reasons given in their requests are insufficient to warrant waiver of the unambiguous filing deadline. It's her prerogative so right Yup. So okay the Florida. Supreme Court is then like Oh wait a minute there. They step in and they her from certifying those results which allows the the the recounts Continue Republicans of course are pissed and on December eighth Following a bunch of legal more legal bullshit the Florida Supreme Court ordered a statewide manual recount. Yeah and then that's where Bush petitions the Supreme Court Not For the first time during the case but for the first time that really matters I think to stay the recount and to halt the recount. This case what you need to do is show that if it proceeded would be irreparably harmed right right which is usually like a good example of irreparable harm is like someone is about to destroy like priceless antiques. Right they literally literally probably cannot be replaced You know and not a subject any monetary value. An court might be like all right. Don't do that because if you do it. We can't reverse it right. That's the whole point. So Supreme Court grants it. Despite the fact that there's almost no question that there's no real irreparable harm of allowing the the recount to continue the descent in that case which goes five to four Concert Know Republicans versus Democrats essentially says how can counting every vote be irreparable harm and Retort from the majority as well no no. That's not what we're saying. What we're saying. Is that if you accidentally count? Illegal votes non-legal votes that would be irreparable harm but doesn't make any sense at all you could just let let it continue. And then if you want to impose standards on it after the fact or scrapped the whole thing right. You could easily do that. It's the definition of reparable. Harm right you could just say no actually votes that are just dimples and not punched out. Chad's don't count. And they're all subtracted from the total and that's it you know after this happens. It seems pretty clear how the whole thing is about to shake out right because you still have the main case that essentially decides whether a recount will eventually continue That's coming up in a couple of days and now that this has gone five to four. It seems pretty clear that that's going to go five to four to ram so I've been thinking about this in. I thought I had about like. Why is she the stay that makes the most sense to me is? Is this you know? At one point. The margin was like seventeen hundred votes that game all the way down to like three hundred twenty votes or whatever and if you're sitting there saying well in four days we're GonNa say this recount is a no go. The last thing you want is in between now and then further results to switch right. You'd much rather affirming a very thin lead for Bush. Then saying that's actually. It's exactly why they did it right because they had the lead. So imagine you're a conservative justice. Who just so happened to one goal? And that's electing Republican president. What would you do? Bush has the lead now. You can't risk it you halt it right now. And then. Whatever decision you eventually make will be made under the presumption that Bush. The defacto winner read so that. That's sort of where their heads out with the stay. I think pretty clearly you know they need to essentially find a reason to invalidate the recount but also need to find the reason that the recount can't be restarted or redone. And that's kind of a problem because if there's a problem with the recount the obvious solution is to just fix it and count the votes. So how they do this. It's there are two pieces to it. One is they talk about the equal protection clause of the fourteenth amendment. And they need to do this. Because also these are all state laws So they really don't have any place to be weighing in on this in any event so they need to find a federal hook so the federal constitution says All citizens are guaranteed equal protection under the law and the Supreme Court says well Look Needy you count votes one way in one county and you recount them and other in another county that doesn't sound very equal to me completely wrong and just flies in the face of how elections are done when we're talking about different standards being used in different counties so during the recount. It's looking at the the voter I guess. Is it a punch card? Michael like e depends. But they're some that were punch-card right. Yeah the Supreme Court is looking at this and saying During this recount different counties are applying different standards to what they're saying is a vote or not vote for a certain candidate so if something is partially punched through or there's a hanging Chad or a dimple there aren't uniform standards across the state For our counting these votes and the thing is that's how all elections are working. But the the weird thing about this is that like. It's not the craziest argument that you know. There are different standards for how you count. Votes across different counties is that a violation of equal protection. The point though is that if it is then every presidential election in US history has been invalid under the equal protection right and the majority has like a very kind of weird Situation on their hands where they found they need to find the equal protection violation. But you need to get around to the obvious implications of it which are that. All elections are valid under the equal protection clause at least all federal elections any federal election. I could think of maybe outside of House Elections and how do they do that? They do that just by putting in a paragraph that says by the way This doesn't apply doesn't anywhere else you really. And so they really do this. They say this is only applicable to this election. This recount right now doesn't apply anywhere else. Which is absurd and be. I don't even recognize their right to do but I don't think that a court can say Oh Ignore the implications of my reasoning and just limit it to this. If you can't tighten the reasoning so that it's only applicable to this situation and you have to deal with the consequences and the Supreme Court. In in in the opinion they give a lot of Attention and energy to this idea that like you know you don't really have an individual right to vote in this country under the federal constitution and until the state vest this power in the people which is to say that they actually they lead off with that whole concept is there's no constitutional right to vote. Which is true and I. I'd always cracks me up whenever you do. It read voting rights case. Because you have to lead off first of all Fyi There's like no constitutional right to vote. Which I know I think every law student knows but like I think that if you ask the average person if there is a right to vote under the constitution they'd be like well. Yeah of course. That's like the big enough the the cornerstone of our democracy. That's motherfucker fuck and Thomas. Jefferson thought you were an idiot and they they they were like. Oh instead like the you know. The state will appoint like You know whatever. Thirty seven monocled Free to decide what's best for the state and so the you know. The courts have jumped through hoops to sort of create What is now functionally constitutional right to vote but doesn't really exist in the constitution itself. A part of the background for that by the way is that like the you know there were there were talks around this time that the Florida legislature they would just declare Bush the winner. The recount be damned the Florida Supreme Court. Be Damned. They'll just like pass a law that says Bush one and then they'll send Bush electors to the Electoral College. And that'll be that. And I think that this was a little bit of like the Supreme Court being the constitutional. If they WANNA do that. Yeah that's what they wanted to do. So they've that's how invalidate the recount right rats? Step one you've you find this Bullshit equal protection argument threat But now years you still have the second problem. Which is how do you utilize a reasoning that prevents the recount from being restarted or Redone you know. That's the obvious answer to that. It was like still. Let's all the votes counted and find out who won you have a constitutional violation. How do you fix it? So that's the question and they answer it by saying you can't fix it by using this Obscure Safe Harbor Provisions Which states that if your electors are submitted by December twelfth two thousand they're guaranteed to be counted by Congress and by the way this opinion is issued on December twelve. Right is this. This law is Federal Law Obscure Law. Basically says you know if you don't want be the results of your election to be challenged by by Congress. They just need to be submitted by this date. If you do it after that then Congress can technically intervene although in reality I think they never do would. It'd be bizarre. I think it's actually important to note too that lake the using this safe harbor provision. It's not essential it doesn't apply to everybody in the year. Two Thousand Twenty. You don't even use it and the question here is does Florida care more about the safe harbor provision right which is relevant once a century or about an accurate count of the votes of their constituents precedent. It you know. It's a rhetorical question when I say right but not everyone views it like that right and just a highlight like how kind of shoddy the reasoning is in this opinion number one first of all per curium which. I don't think we have we've mentioned which means No one justice is Putting his or her name on it to say I. It's the way that they would put procurement to say that it's like the opinion of the court but the way that I would view it as is a unsigned and that's exactly right exactly and so you automatically start to question why it's per curium. Because nobody wants to put their name on it and then number two just the languages facially. It's ridiculous so there's a quote here. It is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. Okay I literally row. Ll like okay. So President I do have to say. I have some sympathy. This is too much. I I do this at work all the time. There's a big project like we have this big important goal and I'm like. Oh Wow I don't know about guys. Deadline seems way too soon right. Scalia looked at this and once a nap well and so we stiffly framed. The safe harbor thing was like would you want to submit the actual winners electors open to challenge verse possibly submitting the actual losers electors. Not Open to challenge in court was like clearly. It's the losers electors not open to challenge Florida. Wasser for sure. We're divining the the will of Florida's Lennon to ask the Florida Supreme Court. Who has already disagreed with us on this very on this very point. I mean it's the whole thing is treating the convenience of the Safe Harbor Provision Right which protects the integrity of the state selectors or some stupid shit. That didn't hasn't mattered in one hundred years like that As more important than the constitutional guarantee of equal protection right now. The reason they're doing this is because they don't actually care about the constitutional guarantee of equal protection. They don't think it's an act of violation of equal protection. They just are again like just twisting it every way they can to make sure that a Bush wins and be. There's no way that that it can be changed or reversed or anything right I mean they're they're saying that they understand Florida law better in the Florida Supreme Court right on there saying all types of Shit like that and the other thing about this is that they're saying by the way there's no time for a recount right out of time but they just stayed the fucking recount three days before all right first of all you have to stop and then three days later like. Oh my God she says you guys know that. There is your attitude. I Like I was looking at my watch and then I realized you're at a time as we're writing this is crazy anyway. Good luck in the next election. It's just it's so blatant if he makes me so angry it's it's one of the it's it's incredibly brazen big takeaways that like the Supreme Court doesn't have to be doing this at all in elections states and localities are setting these standards all the time. They're working through it. Florida has this recount problem. They're setting standards. The Florida Supreme Court is working on it the legislators into it and the US Supreme Court comes in here and says no just fucking stop right. Yeah the Florida. Supreme Court gave some pretty clear you direction based on the Florida Constitution. That like they wanted the votes counted and they said that's why the Florida constitution called for and this is all state law the mechanics of their elections. It's very complicated. It's not obvious. Why the Supreme Court is bugging in here? Well well it's political. I mean not obvious what the actual reason wouldn't if you were a real one legally obvious but politically. It's painfully and the petition from Bush's lawyers. That comes first to justice Kennedy Right. He's the one that brings it to conference. Let sounds like a section of the wikipedia that you read that I didn't say go for Kennedy is the one who brings it to conference Justices like Antony. Scalia think yes. The Supreme Court has to step in here and Justices like so bad. Imagine Scalia when it first became clear that they had the option of intervening. The fucking sheared raising three inches long. And here's the thing. Is that even if you try to be generous to these guys and be like well look. Maybe they're just going on their intuitions. It's totally backwards. All the justices who want to weigh in here in and overrule the Florida courts. Generally their intuitions are that the federal court should stay out of state business right. That's that's the other thing is like the Conservatives on the court constantly like when the federal government's trying to expand minority rights or something right the Conservatives will step in and be like ooh state issue. Sorry we would love to break is actually all the states Sorry you can't fuck around with this at all because you're the feds and then here all of a sudden they have zero respect. I'm sympathetic to your argument. That black people are full people but in South Carolina is not. I think it's our place I don't think so but Here we have very strong opinions on whether or not a dimpled ballot. Verse a half. Hanging Chad ballots should be counted. And so I just I want to say like we're we're sitting here and we're sort of divining. Ill intent from the strained reasoning here and I don't think that's hard. I don't think it's a stretch. I think it's like blatantly obvious but I also want to say like I know someone who clerked on the Supreme Court and at the end of Michael. I've got a friend who is a an MVP at Goldman? Well I don't really. I don't have a friend. John's death-row we all. I never friends. You have to drag us down so Mo. My friend told me that they spent some time looking at old memos. Sorta digging through the archives to see what people were saying in private about this and there were two justices who were just not even hiding in their personal memos and in their interoffice communications that all they were trying to do here was a firm that Bush one and they didn't care about the legal reasoning and how they got there right and they're protected in this because there's a very strong sort of coon of silence around what happens in Supreme Court among the clerks and so this is being told me in confidence by someone who could clearly right this it would be. Maybe the most important impactful thing they could do in their career would be to publish copies of these memos. Right and sort of shine a light I'm sure that they're doing great at the Brennan Center at the rented a really important point. Michael the secrecy and Ivory Tower Bullshit. That's not because it makes the law. Better right it's because powerful people in their interests and keeping their jobs and excelling and making money right. And so that's why you need to hear from three dirtbags on a podcast that the supreme court's all bullshit is because the people who practice before the Supreme Court and the people who clerked for the Supreme Court and the people who spend their life writing law review articles about the you know all the implications of the writings of the prem- court all benefit from its perceived legitimacy. They're tied up in it. Yeah but they'll the last main paragraph of this opinion is so fucking offensive. Because it is that lied. It is that like public image that they want about what the court does so quote none are more conscious of the vital limits on judicial authority than are the members of this court and none stand more in admiration of the constitutions designed to leave the selection of the president to the people through their legislatures and to the political sphere. Falk you guys like you just read each yet today. The top lawyer says the legal battle is over. We've had an appeal. We've taken that appeal. There is no appeal from the United States Supreme Court. Let'S TRY TO ENVISION. What would happen if the if the Supreme Court doesn't shut down the recount right right? It's hard to game out because there are so many different scenarios right. Is there like the full statewide? Manual recount is something more you know modest Settled on right like just under votes over votes. Counted is a just certain counties like do they go revert back to that. I mean what if the Supreme Court never intervened in the first place because they had cast doubt on the Florida Supreme Court. You know a month earlier and a separate decision and and that sort of set things in a weird direction but you know there are scenarios where a limited recount gives the election to Gore or a full recount. Maybe affirms that Bush one on a very narrow vote but again if this all happens after the safe harbor maybe Congress questions it maybe. The Florida legislature goes through with their plan of affirming Bush's the winner regardless of the vote. And that's it. It's it's hard. That's this discrepancy is like what's important the you have uncertainty on one hand and certainty on the other right row. You have the certainty of Bush winning if you hold the recount and you have uncertainty on the other hand. Um and there are like a dozen prestige procedural Things that could have happened. If the recount continued there could have been more court cases different court cases right mom more narrow court cases but the bottom line is that there would have been some risk of Gore winning right and they couldn't tolerate it reckenthaller area so I think the you know part of takeaway here is that Bush Gore was not when the Supreme Court became political. The court has always been driven by ideology politics and power but Bush v Gore exposed. Just how shallow. And partisan the courts politics actually are and stripped away the veneer of impartiality and high mindedness that the court sort of hides behind and anyone who thinks after Bush v Gore the core functions as like an independent body separate from politics or that it even could function like that theoretically is just a rube. Just a complete fucking sucker wrote right. We should talk about the alternate world. We would all live in. Can you imagine there's been tons of research into? What would have happened right if you if you like? Imagine a fair election and it's extremely hard to say because there's there's so much bullshit going on like could hold everything else constant and if the ballots in Palm Beach County are designed different. Al Gore Wins Right. That's just like without controversy at this brand And the question is how different is the world we live in obviously were twenty years out. It's hard to say but the one really significant thing is that Al Gore was the first presidential candidate. I think to ever really significantly talk about global warming which at the time was like a punchline. Right right just like Oh my God. Is this one these? He's obsessed with this like the world's what are you talking about Al Fucking nerd. You Boring Nerd Let's let's see what the idiot has to say about this great? So do I think he could of like passed significantly? Global warming legislation. Like what would have been necessary at the time. Oh no probably not but it would have been on the political radar fifteen years at least before it was right The other thing is that you know Bush gets elected and then within a year plans and orchestrates. The nine eleven attack could all right so We WanNa end this episode on on you know a little more positive note and I think a good way to do it his You know the five majority justices in this case were rehnquist. Scalia Thomas O'Connor and Kennedy and Kennedy and of those Rehnquist and Scalia dead. That's right you may have been you know. I I think that overall worse in terms of if you just had to measure out like who's a worst human being threat to worst they are you can make the argument that like Kennedy's been more damaging because like he's got his wishy washy bullshit kind of vibe about him. Yeah but I think in reality for all being honest the these guys have had almost immeasurable harm that they've inflicted on the country greatest. Yeah that's right that's right. No it's it's true though like if you talk about modern era supreme court like after everyone agreed that like minorities are human beings. These two guys are the worst. Like there's no question well an rehnquist so I don't think they believe that it was in particular is like a relic of before that era right. He was like famously segregationist. Who was like not on board with Brown v Board when he when he was a clerk at the Supreme Court is an all time piece of shit but he's dead guess and emphasize it enough. You cannot hit that point. We're going to circle back a few times over the course of the next several episodes about how well Rehnquist what state and you know the finally twenty years too late the Democrats are talking about you. Know Supreme Court reformed so who knows. Maybe twenty years from now will actually have Some something resembling sanity with this. Yeah I think there's a chance I think don't know it's an outside shot. It's an outside shot for sure. Not Bullish on it but I think that the cavenaugh experience was like Sort and Awakening for Democrats in some regard whether or not they actually do anything as a result is a completely different thing but I think several like a lot of prominent moderate establishment. Democrats were able to look at that and think like this is sort of naked power. Play right And the the only question is whether they are able to eventually reckon with the idea that the proper response is naked power play and not trying to play semantic games or whatever and nominate Merrick. Garland read All right the next episode is going to be. I think a bit of a Banger. It is it's citizens United The F. E. C. And maybe I think maybe the most symbolically-important case of the past decade or so and Something that has sort of become the embodiment of corruption and the distinct level of inequality that we see in the in the modern political era. Plenty of stuff to get really pissed off about in that opinion. So it's a terrible case. Also one of those cases that like law students are told is actually quite reasonable but then when you read it like no it's this it's so fucking bad it has so far it's really bad. Yeah I'm looking forward to taking a big shit on it. Yeah five to four is presented by Westwood One and prologue projects. This episode was produced by Kacha Cova with editorial oversight by Leon Faulk and Andrew Parsons We want to give a special thanks to James on twitter at Buffalo show for the inspiration for Our Name James. Thanks James James from the Westwood One podcast network.

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