00:01 [Archival]: We'll hear argument now on No. 00-949, George W. Bush and Richard Cheney versus Albert Gore et al. Before we begin the...

00:11 Leon Neyfakh: Hey, everyone, I'm Leon Neyfakh, co-creator of Slow Burn and Fiasco. I'm here to introduce 5-4, a weekly Supreme Court podcast featuring America's most un-civil lawyers. On today's show, your hosts, Peter, Rhiannon and Michael are talking about a case that decided a presidential election, Bush v. Gore. The story starts on election night 2000, when Americans went to bed not knowing which candidate had won, because the vote in Florida was too close to call.

00:43 [Archival]: A vote so close that under Florida law, it must be recounted.

00:47 [Archival]: The Gore campaign, they will fight this issue of the Florida ballot until every vote is clear.

00:52 Leon Neyfakh: In the end, the Supreme Court effectively handed the presidency to George W. Bush.

00:57 [Archival]: The ruling strikes down the Florida Supreme Court recount plan as unconstitutional.

01:03 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

01:13 Peter: Welcome to the inaugural episode of 5-4, a podcast about how much the Supreme Court sucks and the only Supreme Court podcast without a pending Title IX investigation.

01:23 Rhiannon: That's right.

01:25 Michael: Very proud of that.

01:25 Peter: We are. Each episode, we're gonna 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 in, we wanna 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.

01:54 Michael: The world's daintiest lawyer.

01:56 Peter: America's daintiest lawyer. No...

02:00 Michael: There might be some daintier lawyers in...

02:00 Peter: No opinions.

02:01 Rhiannon: There might. There are others, yeah.

02:03 Peter: And I go to work and instead of working I think of tweets about the law and politics.

[chuckle]

02:11 Peter: Michael.

02:11 Michael: Sure, yeah. I'm Michael. I am a reformed corporate attorney and former election lawyer and now I am doing bigger and better things like...

02:23 Peter: Podcasts.

02:23 Michael: Podcasts. That's right.

02:25 Rhiannon: And I'm Rhiannon and I do public defense work in the South.

02:29 Peter: Okay, well, there's no need to get like showy. We understand that you're the only one who's a real lawyer here.

02:36 Michael: Wow, somebody's putting her degree to work to make the world a better place.

[chuckle]

02:41 Peter: Right. So 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 and undeserved reverence, and there's an illusion that it's apolitical 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 wear 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 a completely different kind of person than anyone else. Wear a fucking suit like a normal person.

03:33 Rhiannon: Yeah, imagine wearing your work uniform anywhere other than when you're at work.

03:37 Peter: Well, first of all, let's imagine that your fucking work uniform is a robe.

03:40 Rhiannon: It is a black dress-y thing.

03:42 Peter: You're a judge. Okay. You're not a deity. Just roll over to fucking Brooks Brothers and do what we all do. Anyway, why did you guys wanna do it?

03:55 Michael: For me, when I read these opinions in the law generally, I feel like there's a subtle or maybe not so subtle gatekeeping aspect that goes on, which is they are just laden with jargon and citations that really are impossible to understand unless you've been trained on them, like Latin 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 understanding where to start. The first time I tried to read a Supreme Court opinion, start to finish in law school, I spent 10 minutes reading something and being like, "This is so weird, this is not like the case books I knew as the syllabus." Which I didn't even know was a thing that existed, and 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 adorns this.

04:58 Peter: Well, yeah, like the robes.

05:00 Rhiannon: Exactly.

05:01 Michael: Right. [chuckle]

05:04 Rhiannon: No, I really like that framing of this mythos and this idea that this stuff isn't accessible to the layman, it serves everybody's career interest and keeps those people kind of in power. There's just this idea that the Supreme Court is a group of nine, sage, unbiased legal titans. 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, "I view the role of the judge on the Supreme Court as an umpire, and we just call balls and strikes."

05:43 Michael: Right.

05:44 Rhiannon: When actually what the Supreme Court does is ideological judicial law-making all of the time. And I think hopefully in the podcast, we can kind of demystify that process a little bit and expose those contradictions.

05:58 Peter: Yeah, and show everyone that nine Justices that compose the Supreme Court are not the smartest people in the country.

06:03 Rhiannon: No.

06:04 Peter: We are.

06:04 Michael: That's right.

06:04 Rhiannon: Yes. [laughter]

06:07 Peter: So we wanted to start with Bush v. 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 than 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 2000, the '90s 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.

06:58 Rhiannon: That's right, yeah.

07:00 Peter: But the one thing I'll also say is that Bush was dumb in a way that now seems, like, very quaint, where he would say a word wrong, he would say strategery 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, just wandering from room to room with like a thought bubble with a picture of a hamburger in it above his head, just has never had a thought that was not a reaction to direct physical stimulus.

07:37 Rhiannon: Nowadays, I yearn for a President whose biggest issue is that he says "nucular", nuclear.

07:40 Michael: Nucular.

07:42 Peter: Nucular. Which by the way, is how pretty much everyone said it. I feel like that was the first time most people learned how to pronounce that word.

07:50 Michael: Yeah, people were like, wait.

07:55 Peter: Rhi, we should, let's start talking law. Alright?

07:56 Rhiannon: Yeah, for sure.

07:57 Peter: What happens?

07:58 Rhiannon: Yeah, no, before we get to the law, I wanna be clear that I was, on November 7th, 2000, I was 12 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 guys do this when you were younger, is like you color in the map, the states you color it blue or red for whoever it goes for?

08:28 Peter: Yeah, I still do that.

08:29 Rhiannon: Yup. And so I...

08:30 Michael: I smoked way too much pot, my memory is very vague.

08:33 Rhiannon: 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, you know what, I failed this assignment, I fucked up. So it was really traumatic. Yeah, so all the major networks that night, they called Florida for Gore.

08:58 [Archival]: A big call to make, CNN announces that we call Florida in the Al Gore column.

09:04 [Archival]: We're gonna now project an important win for Vice President Al Gore. NBC news projects that he wins the 25 electoral votes in the state of Florida.

09:12 Rhiannon: But then retractions started at around 10:00 PM.

09:15 [Archival]: We now believe the state of Florida is too close to call.

09:18 Michael: That's weird.

09:19 [Archival]: We and most other news services had called it for Mr. Gore. We now believe it's too close to call.

09:22 Rhiannon: The networks start switching their calls to Bush.

09:24 [Archival]: Now projects George W. Bush the winner in Florida, and thus it appears the winner of the presidency of the United States.

09:31 Rhiannon: And then by morning, people wake up and it's undecided.

09:34 [Archival]: If you take 25 votes away from Al Gore and put it in the undecided column, and should they break for Bush, the entire...

09:40 Rhiannon: On November 8, the next day, the Florida's Division of Elections, they say that Bush won by a really small margin, it's like 1,700 votes, which is less than the 0.5%, which means basically that a mandatory recount is triggered. And by November 10th, the machine recounts have brought that lead down to around 300 votes, so...

[laughter]

10:06 Peter: This is such a shitshow, dude.

10:06 Rhiannon: Right, right, it's a fucking mess, is what it is.

10:10 Michael: Yeah, yeah.

10:11 Rhiannon: And Gore requests manual recounts in four counties, and the shit show just gets more intense from there. In Palm Beach County, for example, 10,000 ballots were set aside because they recorded no vote for president at all. In Volusia County, they record Gore receiving negative 16,000 votes, so it's just... It's like what the fuck is going on.

10:36 Peter: That turned out not to be an error, so that was just... He's not that popular in Volusia. Even as a teenager witnessing this, it was just like peeking under the veil of American politics and seeing this horrible writhing mess beneath, where everything was deeply corrupt and inaccurate and full of just human error and dark motivations, and it was just the first time I think that a light had been shined on this part of the system, and it was deeply unsettling to everyone.

11:15 Michael: I was 18 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 others.

11:27 [Archival]: Miami-Dade, Broward, Palm Beach and Volusia, each with more registered Democrats...

11:32 Michael: Yeah, I voted in the election, so I do not know if my vote was actually ever counted, and there were just 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 shenanigans, there was like the 50,000 voters that got purged from the Florida voter rolls because they are supposedly felons, but it turns out a lot of them weren't felons, they were maybe misdemeanors, maybe no crime at all. And they're all black or Hispanic, and one estimate says that cost Gore 5,000 votes in an election he lost by 300 votes. A lot of the madness, it was just inevitable and organic, and there's a lot of tension because people don't really know what's gonna happen, but some of it was just this manufactured bullshit, most famously, the "Brooks Brothers riot" which...

12:30 Rhiannon: I have a question. What is a Brooks Brothers...

12:33 Peter: It's like a menswear store. I knew the question immediately. Yeah, it's just a suiting store.

12:41 Michael: Yeah, they make...

12:43 Rhiannon: Like fratty?

12:43 Peter: No, it's just like your standard bare mid to low range, like the... You first... You go to Men's Wearhouse, and then you realize that that's not nice enough for your fancy job.

12:53 Michael: Right, you don't actually like the way you look.

12:55 Peter: Yeah, and then...

[laughter]

12:56 Michael: And so they...

12:57 Peter: And then you go to Brooks Brothers to pay like $700 for a suit that some fucking idiot sells you, and then like...

13:05 Rhiannon: Great. So...

13:05 Michael: And so...

13:06 Rhiannon: A riot happens there.

[laughter]

13:08 Michael: Yeah. That's not...

13:10 Peter: It's not at Brooks Brothers. It's...

[chuckle]

13:12 Michael: Right. The Brooks Brothers was unscathed, thankfully. Basically what happened was in Miami-Dade, there were these 10,000 or so ballots, undervotes, right? These ballots that hadn't recorded votes, and we're getting close to one of the deadlines here, and Miami-Dade's concerned about being able to recount all the votes, so they say, "Well, we're gonna look at these 10,000 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 batch to change the outcome of the election. So Republicans flew in all these 40 to 50 year-old lawyers. Of course, they're almost all lawyers.

14:02 Peter: And when we say Republicans, like the actual Republican Party in DC.

14:07 Michael: Right, no, this is like, yeah, this is like Roger Stone, who's a fucking Republican rat fucker back into the '70s, a Nixon guy, and...

14:17 Rhiannon: He's the one with the Nixon tattoo, right?

14:19 Peter: That's right.

14:19 Michael: That's correct.

14:20 Rhiannon: Got it. Yeah.

[chuckle]

14:20 Michael: Dresses like a villain in Who Framed Roger Rabbit. [laughter] It's all Republican aides and lawyers who fly in. They're all on their Blackberrys. They're all in their fancy suits protesting, and they get violent. They're punching people. Someone from the DNC is literally assaulted. And they succeed. They shut down this recount like two hours after they get fucking crazy.

14:53 Peter: Which is very important to note that this is the only successful riot in American history. Every time that someone is protesting police violence or whatever, they just get fucking wiped out with tear gas, but fucking 50 Republican lawyers show up in Miami-Dade and they're like, "Well, whatever they want."

15:14 Michael: Just go break some windows.

15:14 Peter: Whatever they want. Just let us know.

15:16 Rhiannon: Well, and all they had to was...

15:17 Peter: Let's immediately capitulate."

15:19 Rhiannon: All they had to do is act exactly how they do with their wives and got their way.

[laughter]

15:28 Peter: Oh, shit!

15:30 Michael: Jesus. [laughter] But I think it's good to talk about the riot, because it's a good preview for the next 20 years of Republican politics and the way they treat elections generally and Democrats, and the idea that any Democratic efforts at getting votes counted are illegitimate and fraudulent, and they can take whatever means necessary in their hands to shut that down. All they gotta do, all they wanna do is win elections, so they don't give a shit.

16:00 Peter: And maybe the most emblematic aspect of how on its face corrupt the entire process was, is Katherine Harris. [chuckle] 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 if you want to understand what type of person she is, I think that she's another type of important American political archetype which is, there are movies about where the protagonist is like a mother and the antagonist is a woman who is extremely mean and through sheer belligerence and force of will dominates the local PTA?

[chuckle]

16:52 Rhiannon: Sure.

16:53 Peter: You guys know what I mean?

16:54 Michael: Yes.

16:55 Peter: And she wears a little too much make-up and you're like, she just seems like a force of nature, just plowing through everything in front of her to get whatever she wants and at the expense of the children. Usually. Which is why I think this archetype was made famous a few years later with Sarah Palin, who's the real embodiment of it. And then you had a couple others like Michele Bachmann, and but I think Katherine Harris was the first time PTA mom who was on the political scene in America and American life. So she was the one that oversaw the purging of the voter rolls on the grounds that they were ostensibly felons, even though maybe not. And she's the one that sort of starts over, like is in charge of the oversight of this process and was just nakedly corrupt and favoring Bush at every single step, not even trying a little bit to hide it.

17:51 Michael: Which I mean, her boss was Bush's brother.

17:56 Peter: Yeah, that's right.

[chuckle]

17:57 Michael: And they're both Republican...

18:00 Peter: Yeah, yeah. Minor point. Governor of Florida, fucking Jeb Bush.

[laughter]

18:04 Peter: Jesus Christ!

[laughter]

18:06 Peter: Alright.

18:06 Rhiannon: 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 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 were late.

[chuckle]

18:36 Michael: That sounds fair.

18:37 Rhiannon: No. Well, she proceeded to reject them all outright. [laughter] And declared that she's gonna certify the results the next day anyway.

18:44 [Archival]: Florida's Secretary of State, Katherine Harris, has announced that she is rejecting any further efforts...

18:50 [Archival]: The reasons given in their requests are insufficient to warrant waiver of the unambiguous filing deadline...

19:00 Peter: Well, okay.

19:00 [Archival]: Florida Legislature.

19:00 Rhiannon: Everything is above board, guys.

19:02 Peter: She says it's her... Look, it's her prerogative so.

19:04 Rhiannon: Right, yep, okay, the Florida Supreme Court is then like, "Ahh, wait a minute," they step in and they enjoin her from certifying those results, which allows the recounts to continue. Republicans of course are pissed and on December 8th, following a bunch of legal, more legal bullshit, the Florida Supreme Court ordered a state-wide manual recount.

19:32 Peter: Yeah, and then that's where Bush petitions the Supreme Court, not for the first time during this case, but for the first time that really matters, I think, to stay the recount. And to halt the recount in this case what you need to do is show that if it proceeded you would be irreparably harmed, which is usually... Like a good example of irreparable harm is like someone is about to destroy priceless antiques, that literally people are like cannot be replaced and not subject to any monetary value and a court might be like, "Alright, don't do that because if you do it we can't reverse it," that's the whole point.

20:10 Peter: So the Supreme Court grants it despite the fact that there's almost no question that there's no real irreparable harm of allowing the recount to continue. The dissent in that case, which goes 5-4, considering Republicans versus Democrats, essentially, says, "How can counting every vote be irreparable harm?" And the retort from the majority is, "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 it doesn't make any sense at all, you could just let it continue and then if you want to impose standards on it after the fact or scrap the whole thing, you could easily do that.

20:51 Michael: It's the definition of reparable harm, you could just say no, actually votes that are just dimples and not punched-out chads don't count and they're all subtracted from the totals and that's it.

21:03 Peter: After this happens, it seems pretty clear how the whole thing is about to shake out, 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 5-4, it seems pretty clear that that's gonna go 5-4 too.

21:20 Michael: Right. So I've been thinking about this and the one thought I had about why issue the stay that makes the most sense to me is this, at one point the margin was like 1700 votes, that came all the way down to 320 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 for the results to switch. You'd much rather be affirming a very thin lead for Bush than saying, actually...

21:52 Peter: Well, that's exactly why they did it, 'cause Bush had the lead, so imagine you are a conservative Justice who just so happens to have one goal and that's electing a 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 is the de-facto winner.

22:12 Michael: Right, so that's sort of where their heads are with the stay, I think pretty clearly, they need to essentially find a reason to invalidate the recount but also need to find a 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 The Equal Protection Clause of the 14th Amendment and they need to do this because also these are all state laws and 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 the citizens are guaranteed equal protection under the law. And the Supreme Court says, "Well, look, if you count votes one way in one county and you recount them another way in another county that doesn't sound very equal to me."

23:10 Rhiannon: Right, which is 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 voter, I guess is it a punch card, Michael?

23:28 Michael: It depends, but there are some that were punch cards, yeah.

23:30 Rhiannon: Right, the Supreme Court is now looking at this and saying, during this recount different counties are applying different standards to what they're saying is a vote or is not a 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 how we're counting these votes and the thing is, is that's how all elections are working.

24:00 Peter: Right, but the weird thing about this is that it's not the craziest argument that 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 clause. And the majority has a very weird situation on their hands where they found... They need to find this Equal Protection violation, but you need to get around the obvious implications of it, which are that all elections are invalid under the 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...

24:51 Michael: This doesn't count. [chuckle]

24:52 Peter: To anywhere else," and so they really do this and they say, "Well, this is only applicable to this election, this recount right now, it doesn't apply anywhere else." Which is A, absurd and B, I don't even recognize their right to do. 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, then you have to deal with the consequences of that.

25:20 Rhiannon: And the Supreme Court, in the opinion, they give a lot of attention and energy to this idea that you don't really have an individual right to vote in this country under the Federal Constitution, until the state vests this power in the people, which is to say that...

25:37 Peter: They actually... They lead off with that.

25:38 Rhiannon: Yeah. They set these standards.

25:39 Peter: The whole concept that there's no constitutional right to vote, which is true. And it always cracks me up whenever you do it, read a voting rights case, 'cause you have to lead off with, first of all, FYI, there's no constitutional right to vote.

25:50 Rhiannon: Surprise.

25:50 Peter: Which I know, and I think every law student knows, but I think that if you asked 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 building of... That's the cornerstone of our democracy."

26:02 Rhiannon: That's fucking America.

26:02 Peter: Actually, no, motherfucker, fucking Thomas Jefferson thought you were an idiot.

26:05 Rhiannon: Right. [laughter]

26:08 Peter: And they were like, "Oh, instead... " The state will appoint, whatever, 37 monocled freaks [chuckle] to...

26:17 Michael: To make these decisions.

26:19 Peter: To decide what's best for the state. And so the courts have jumped through hoops to sort of create, what is now functionally a constitutional right to vote, but doesn't really exist in the Constitution itself.

26:31 Michael: And part of the background for that, by the way, is that 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 pass a law that says Bush won, 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 the Supreme Court being like, [chuckle] "That's constitutional, if they wanna do that." Just so you know.

27:00 Rhiannon: Right. Right.

27:00 Peter: That's what they wanted to do. So that's how they invalidate the recount, right? That's step one. You find this bullshit Equal Protection argument. But now you still have this second problem, which is, how do you utilize a reasoning that prevents the recount from being restarted or redone?

27:20 Michael: 'Cause that's the obvious answer to that, which is like still let's get all the votes counted and find out who won.

27:26 Rhiannon: Exactly.

27:26 Peter: You have a constitutional violation. How do you fix it, right? So that's the question, and they answer it by saying, "You can't fix it by using this obscure safe harbor provision, which states that if your electors are submitted by December 12th, 2000, they are guaranteed to be counted by Congress." And by the way, this opinion is issued on December 12th.

27:47 Michael: Right. This law, this federal law...

27:50 Peter: This obscure law.

27:50 Michael: Basically says, "If you don't want the results of your election to be challenged by Congress, they just need to be submitted by this date."

28:00 Peter: If you do it after that, then Congress can technically intervene, although in reality, I think they never would.

28:05 Michael: It would be bizarre.

28:06 Rhiannon: I think it's actually important to note too that using that, this safe harbor provision, it's not essential. It doesn't apply to everybody in the year 2020...

28:14 Peter: Yeah. Most states don't use it.

28:15 Rhiannon: States don't even use it.

28:17 Peter: And the question here is, does Florida care more about the safe harbor provision, which is relevant once a century, or about an accurate count of the votes of their constituents for President? It's a rhetorical question when I say it.

[laughter]

28:34 Michael: Right. But for the Supreme Court...

28:36 Peter: Not everyone views it like that.

28:38 Rhiannon: Right. And just to highlight how kinda shoddy the reasoning is in this opinion, number one, first of all, it's per curiam, which I don't think we've mentioned, which means no one Justice is putting his or her name on it to say, "I wrote this and... "

28:52 Peter: Yeah. The way that they would put per curiam is to say that it's like the opinion of the Court, but the way that I would view it as, is a unsigned... That's how I would view it.

29:01 Michael: Yeah. Cowards.

29:02 Rhiannon: Exactly. Right. Exactly. And so you automatically start to question why it's per curiam. It's 'cause nobody wants to put their name on it. And then number two, just... The language is 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."

29:22 Michael: Okay.

29:23 Rhiannon: I literally wrote lol. Like, okay, so work at it then. Figure it the fuck out.

29:27 Michael: Yeah. Do the additional work, we're electing the fucking President.

29:29 Rhiannon: Right.

29:29 Peter: I do have to say I have some sympathy [chuckle] for just being like, "Oof, this is too much." I do this at work all the time [chuckle] where you see there's a big project where people are like, "We have this big important goal." And I'm like, "Oof. Wow. I don't know about this, guys."

[laughter]

29:44 Rhiannon: Right. Yes.

29:45 Peter: That deadline seems way too soon.

29:47 Rhiannon: Yeah. Right. Scalia looked at this and wants a nap. And so it's like, whatever. [chuckle]

29:51 Michael: The way I saw this framed, the safe harbor thing was like, would you want to submit the actual winner's electors open to challenge versus possibly submitting the actual loser's electors not open to challenge. And the Supreme Court was clearly, it's the loser's electors not open to challenge that Florida wants here. For sure, we're divining the will of Florida's legislature.

30:17 Peter: No need to ask the Florida Supreme Court who has already disagreed with us...

30:20 Michael: Right. On this very point.

30:22 Peter: On this very point. I mean, it's... The whole thing is treating the convenience of the safe harbor provision, which protects the integrity of the state's electors, or some stupid shit that it hasn't mattered in 100 years like that, as more important than the constitutional guarantee of equal protection. 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, just twisting it every way they can to make sure that, A, Bush wins and B, there's no way that it can be changed or reversed or anything, right?

31:00 Michael: Right.

31:00 Peter: They're saying that they understand Florida law better than the Florida Supreme Court. They're saying all the 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, we're out of time." But they just stayed the fucking recount three days before. So they're like, "Alright, first of all, you have to stop." And then three days later, they're like, "Oh, my God, you're out of time."

31:21 Rhiannon: Where's the deadline, what the hell?

31:23 Peter: Holy shit, guys. Did you guys know that there was... You're out of... I was looking at my watch and then I realize you're out of time as we're writing this, it's crazy. Anyway, good luck. Good luck in the next election, motherfuckers.

31:36 Michael: It's just, it's so blatant. It makes me so angry.

31:38 Peter: It's one of the... It's incredibly brazen.

31:40 Rhiannon: Yeah, I think a big takeaway is that 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 legislature's into it. And then the US Supreme Court comes in here and says, "No. Just fucking stop."

32:02 Michael: Right, the Florida Supreme Court gave some pretty clear direction based on the Florida constitution that they wanted the votes counted and they said that's what the Florida constitution called for, and this is all state law, the mechanics of their elections, it's very complicated and it's not obvious why the Supreme Court is butting in here.

32:22 Peter: Well...

32:22 Rhiannon: Well, it's obvious that...

32:22 Peter: It is obvious, yes.

32:22 Rhiannon: It's political, right?

32:24 Peter: It's not obvious what the actual reason would be if you were to formulate a real one.

32:28 Michael: It's not legally obvious but politically, it's painfully obvious.

32:32 Rhiannon: And the petition from Bush's lawyers, that comes first to Justice Kennedy, right? He's the one that brings it to conference?

32:40 Peter: That sounds like a section of the Wikipedia that you read that I didn't. Let it rip, Rhi.

[laughter]

32:42 Michael: Shit, go for it.

32:46 Rhiannon: Kennedy is the one who brings it to conference, Justices like Antonin Scalia think, yes, the Supreme Court has to step in here, and Justices like Stevens...

32:57 Peter: Oh, my God, he wants to so bad. Imagine Scalia, when it first became clear that they had the option of intervening, the fucking sheer joy that must have overwhelmed him.

33:08 Rhiannon: Raging boner for this case.

33:10 Michael: Raging three inch erection. [laughter] 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 wanna weigh in here and overrule the Florida courts, generally, their intuitions are that the federal court should stay out of state business. Right? That's their...

33:33 Peter: 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, the conservatives will step in and be like, "Ooh, ooh, ooh. State issue, sorry, we would love to, but this is actually all the states. Sorry, you can't fuck around with this at all, 'cause you're the feds." And then here all of a sudden, they have zero respect.

33:51 Michael: "I'm sympathetic to your argument that Black people are full people, but you know, I really just don't..."

33:57 Peter: "Unfortunately, South Carolina is not."

34:00 Michael: Right, and I don't think it's our place. I don't think so, but here we have very strong opinions on whether or not a dimpled ballot versus a half-hanging chad ballot should be counted. And so I wanna say, 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 blatantly obvious. But I also wanna say, I know someone who clerked on the Supreme Court and at the end of...

34:31 Peter: La-di-da, Michael, la-di-da.

34:33 Rhiannon: Oh, look who has friends in high places.

34:36 Peter: I actually, I've got a friend who is an AVP at Goldman.

34:40 Michael: Wow. [chuckle]

34:40 Peter: I don't really, I don't. [chuckle]

34:43 Rhiannon: I have a friend on death row.

[laughter]

34:48 Michael: We all have friends.

34:48 Peter: Why do you have to drag us down, Rhi?

34:51 Michael: Good for us. So my friend told me that they spent some time looking at old memos, sort of 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 inter-office communications that all they were trying to do here was affirm that Bush won and they didn't care about the legal reasoning and how they got there. And they're protected in this because there's a very strong sort of cone of silence around what happens in the Supreme Court among the clerks. And so this is being told to me in confidence by someone who could clearly right this and it would be maybe the most important and impactful thing they could do in their career, would be to publish copies of these memos and sort of shine a light on this.

35:49 Peter: Yeah, but I'm sure that they're doing great at the Brennan Center.

[laughter]

35:53 Michael: Not at the Brennan Center.

35:55 Rhiannon: I think it's a really important point, Michael, that the secrecy and the...

35:58 Peter: That was a joke.

36:00 Rhiannon: The secrecy and the ivory tower bullshit, that's not because it makes the law better, right? It's because it serves powerful people and their interests and keeping their jobs and excelling and making money.

36:12 Michael: Right, and so that's why you need to hear from three dirt bags on a podcast that the Supreme Court's all bullshit is because the people who practice before the Supreme Court and the people who clerk for the Supreme Court, and the people who spend their life writing law review articles about all the implications of the writings of the Supreme Court, all benefit from its perceived legitimacy.

36:34 Peter: Yeah, they're tied up in it.

36:36 Rhiannon: But the last main paragraph of this opinion is so fucking offensive because it is that lie, it is that public image that they want about what the Court does, so, "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 Constitution's design to leave this election of the President to the people, through their legislatures and to the political sphere." Fuck you, guys, like you just...

37:03 Peter: Yeah.

37:04 Michael: Eat shit.

37:05 [Archival]: Today, the top Gore lawyer says the legal battle is over.

37:08 [Archival]: We've had an appeal, we've taken that appeal. There is no appeal from the United States Supreme Court.

37:13 Peter: Let's try to envision what would have happened if the Supreme Court doesn't shut down the recount, right.

37:19 Michael: Right. It's hard to game out because there are so many different scenarios, right? Is there the full statewide manual recount? Is something more modest settled on, just undervotes and overvotes counted, is it just certain counties, 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 a month earlier in a separate decision, and that sort of sent things in a weird direction. But there are scenarios where a limited recount gives the election to Gore, or a full recount maybe affirms that Bush won 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 as the winner regardless of the vote, and that's it. It's hard...

38:16 Peter: But that's... This discrepancy is what's important, right? The... You have uncertainty on one hand and certainty on the other. You have the certainty of Bush winning if you halt the recount and you have uncertainty on the other hand, and there are like a dozen procedural things that could have happened if the recount continued, there could have been more court cases, different court cases, more narrow court cases. But the bottom line is that there would have been some risk of Gore winning. And they couldn't tolerate it, they couldn't tolerate it.

38:47 Peter: So I think the part of the takeaway here is that Bush v. 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 Court's 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 that the Court functions as an independent body separate from politics, or that it even could function like that theoretically is just a rube, just a complete fucking sucker. We should talk about the alternate world we would all live in if Gore won.

39:30 Rhiannon: Can you fucking imagine?

39:32 Peter: There's been tons of research into what would have happened if you imagine a fair election, and it's extremely hard to say, because there was so much bullshit going on.

39:42 Michael: You can hold everything else constant, and if the ballots in Palm Beach County are designed different, Al Gore wins, right?

39:48 Peter: Yes.

39:48 Michael: That's just without controversy at this point.

39:50 Peter: Right, and the question is, you know what, how different is the world we live in, obviously, we're 20 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 punch line, just like, "Oh, my God, this fuck. He's obsessed with this." The world's like, "What are you talking about, Al? You fucking nerd, you boring nerd. Let's see what the idiot has to say about this." So do I think he could have passed significant global warming legislation, what would have been necessary at the time? No, no, probably not, but it would have been on the political radar 15 years at least before it was. The other thing is that Bush gets elected, and then within a year plans and orchestrates the 9/11 attack.

[laughter]

40:49 Peter: Alright, so we wanna end this episode on a little more of a positive note, and I think a good way to do it is the five majority Justices in this case were Rehnquist, Scalia, Thomas, O'Connor, and...

41:09 Michael: Kennedy.

41:09 Peter: And Kennedy. And of those Rehnquist and Scalia are dead.

41:15 Michael: That's right.

41:15 Rhiannon: Allahu Akbar.

41:16 Michael: The two that I said may have been...

41:18 Peter: The two worst.

41:19 Michael: The two... Arguably.

41:20 Peter: I think that the two overall worst in terms of, if you just had to measure out who's a worst human being, they're the two worst.

41:26 Michael: Right, they are.

41:26 Peter: You can make the argument that Kennedy has been more damaging, because he's got this wishy-washy bullshit vibe about him, but I think in reality, if we're all being honest.

41:37 Michael: These two guys have had an almost immeasurable harm that they've inflicted on the country in their lives.

41:42 Rhiannon: Yeah, talk about irreparable harm.

41:44 Peter: Two of the greatest...

41:45 Michael: Yeah, that's right, that's right.

41:46 Peter: Cut that. [laughter] No, it's true, though. If you talk about modern era Supreme Court, after everyone agreed that minorities are human beings, these two guys are the worst, right?

42:02 Michael: Yes.

42:03 Rhiannon: Yup.

42:03 Peter: There's no question.

42:04 Michael: And Rehnquist...

42:05 Rhiannon: Also, I don't think they believe that.

[chuckle]

42:06 Michael: Right. Rehnquist, in particular, is like a relic of before that era, right? He was famously a segregationist who was not on board with Brown v. Board when he was a clerk at the Supreme Court level.

42:19 Peter: Ugh, Rehnquist, he's an all-time piece of shit.

42:21 Michael: Yes.

42:21 Peter: But he's dead.

42:23 Michael: Yes. [chuckle]

42:23 Peter: And I can't emphasize it enough, cannot hit that point, we're gonna circle back a few times over the course of the next several episodes, about how dead William Rehnquist is.

[laughter]

42:36 Michael: And finally, 20 years too late, the Democrats are talking about Supreme Court reform, so who knows, maybe 20 years from now, we'll actually have something resembling sanity with this, who knows.

42:47 Peter: Yeah, I think there is a chance. I think it isn't...

42:51 Michael: Rhiannon's looking at me. She's like no.

42:52 Rhiannon: Yeah, just don't have any hope.

42:53 Peter: Well, it's an... No, it's an outside shot, it's an outside shot, for sure, but there's...

42:56 Michael: I'm not bullish on it, but I'm just saying.

42:58 Peter: I think that the Kavanaugh experience was sort of an 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... A lot of prominent moderate establishment Democrats were able to look at that and think like, this is sort of naked power play. And 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.

43:36 Peter: Alright, the next episode is gonna be, I think, a bit of a banger, it's Citizens United v. FEC, and maybe I think maybe the most symbolically important case over 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 this modern political era.

44:03 Rhiannon: Yeah, plenty of stuff to get really pissed off about in that opinion.

44:06 Michael: [chuckle] Yeah.

44:07 Peter: It's a terrible case, also one of those cases that law students are told is actually quite reasonable, but then when you read it like, no, dude, it's terrible.

44:14 Michael: No way, this is...

44:15 Peter: It's so fucking bad, it's so fucking bad.

44:17 Michael: It's really bad. I'm looking forward to taking a big shit on it.

44:25 Peter: Yeah.

[music]

44:28 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. We wanna give a special thanks to James on Twitter @buffalocialism for the inspiration for our name. Thanks.

44:48 Peter: Yeah, yeah. Thanks, James.

44:50 Rhiannon: Thanks, James, Baby James.

[chuckle]

[music]

45:03 Leon: From the Westwood One Podcast Network.