This is Democracy – Episode 253: Bush v Gore: The Legacy

[00:00:00] Intro: This is Democracy. A podcast about the people of the United States. A podcast about citizenship. About engaging with politics and the world around you. A podcast about educating yourself on today’s important issues. And how to have a voice in what happens next.

[00:00:22] Jeremi: next. Welcome to our new episode of This is Democracy, our first episode of the New Year 2024.

Zachary, are you excited to get started again? I’m very excited to get started. We have today, uh, one of our favorite guests, one of my favorite people, and I think clearly one of the leading thinkers in the United States about law and society and history. This is my colleague and friend, Sandy Levinson.

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr., Centennial Chair in Law at the University of Texas Law School. He’s also a professor in the Department of Government at the University of Texas. He’s the author of approximately 450 articles. And since that number is from a year or two ago, he’s probably above 500 right now.

He’s written numerous books. If I were to list them all, we would spend the entire podcast on that. I’ll simply list the three I’ve read that I find most significant that I encourage. And I would encourage all listeners, whether you’re a scholar of law, to read our undemocratic constitution, which is actually my favorite of Sandy’s books, where the constitution goes wrong and how we, the people, can correct it.

It will really make you think about our constitution in a new way and its flaws and limitations. He’s also written with Jack Balkin, Democracy and Dysfunction. And, uh, more recently, with his, uh, wonderful wife, Cynthia Levinson, fault lines in the Constitution, the framers, their fights, and the flaws that affect us today.

Sandy, thanks for joining us. My pleasure. We’re going to talk with Sandy today about the super important decision of 2000 by the Supreme Court, December of 2000, Bush v. Gore. This was the Supreme Court decision that in many ways. Ended the dispute surrounding the 2000 election between Al Gore and George W.

Bush, a Supreme Court decision that in many ways made George W. Bush president of the United States. We’re going to discuss that decision and of course its relevance for understanding the many electoral issues that the Supreme Court confronts today. This is a classic case of recent history having a deep effect upon our current debates and our current politics.

Before we turn to our discussion of Bush v. Gore, we have, of course. It’s, uh, Mr. Zachary’s scene setting poem. What’s the title of your poem today? The Court Has Stopped the Count. The Court Has Stopped the Count. Let’s hear it. We

[00:02:48] Sanford: wait in

[00:02:48] Zachary: line patiently at eight in the morning or just after three when the rain is pouring.

We send our votes across the land. We make our marks in pen and send them to a waiting hand who counts in stacks of ten. We press the button on the screen, we make an X in black, though we really want to scream or give him a good smack. We hold our tongue and bait our breath, say nothing to offend, but come November they will know which way the future bends.

So it has been, so it shall be, so long as no one must recount, the court has stopped the count.

[00:03:27] Sanford: What is your poem about Zachary? My poem

[00:03:28] Zachary: tries to capture the maturity and the respect, uh, for democratic processes, uh, that I think we should expect from our candidates for office, uh, and from voters. Um, but it’s also, I think, a cautionary tale about the importance of judicial restraint in determining, in not determining outcomes of elections, as opposed to sort of simply ensuring the basic, these basic conditions of, um, Of elections that are, um, that have integrity and are fair.

Sure,

[00:03:57] Jeremi: sure. You don’t want courts determining who’s in office and who’s not, right? So, Sandy, before the 2000 election, it seems to me, uh, we would have expected Uh, that members of the court, particularly conservative members of the court, like Antonin Scalia would have agreed with Zachary’s point about judicial restraint.

Yet this decision seems to be a decision where the court and its conservative members, Antonin Scalia, Sandra Day O’Connor, William Rehnquist, stepped in and actually told Florida how to count its, its votes. Uh, why did

[00:04:29] Sanford: this happen? Well, yeah, that obviously continues to be an issue of debate. Um, it is.

Extremely tempting. And I would submit to the temptation to say that five Republican justices could not resist the temptation to install a Republican in the White House who would, as one of his major tasks, pick members of the court. So this is the most. anti Rawlsian decision imaginable, by which I’m referring to Rawls’s noted notion of the veil of ignorance, that one should select principles not knowing exactly Whom they will affect, and particularly if they will affect you.

Um, but here there was no veil. It was very, very clear what the consequences would be. Um, and that is, as I say, the overwhelming temptation in part because the Republican majority had not only pretended to a notion of judicial restraint, but quite frankly, it’s very hard to take seriously those professions on the part of any of the justices.

Nobody believes in judicial restraint anymore in the court. Um, but it also ran contrary to their very limited view of the 14th amendment with regard to voting. So it is very tempting. And again, I res, I submit temptation to say that they were in bad faith. That being said, One could also make some of the same suggestions about the dissenters because.

They had been warm defenders of the Warren Court. They certainly had not been proponents of Frankfurterian judicial restraint in voting cases. And lo and behold, they were here. So, it’s not so much that the arguments against Florida were frivolous, but that the people embracing them would have been predicted in other circumstances to reject them.

And the people who ended up supporting the somewhat chaotic recount process might under other circumstances have been expected to be more solicitous of the complaints. Um, let me say one other thing about this because this came up this past weekend when I was in Washington at the American Association of Law Schools conference and There was inevitable discussion about section three, the 14th amendment and the potential disqualification of Donald Trump back in 2000.

I signed a letter, as did many constitutional law people, denouncing Bush versus Gore in terms of its violation of the rule of law. Even as I signed it, I felt that I was in bad faith because I don’t know exactly what the rule of law is supposed to mean in a modern, what Max Weber might. Or did call a disenchanted world where we are all aware of the interplay of politics and law.

And this letter really depended on the fairly categorical opposition between politics and law, which is not what I really believe, and it’s not what I really teach. And similarly, I think there is a lot. Of bad faith argument going on now on all sides with regard to how to respond to Trump. And I’ll also say this takes us very, very far afield, but one of the panels I was on in Washington dealt with the constitutional crisis in Israel.

And there too, I think a lot of the discussion is in bad faith because what I oppose. Or whom I oppose is a fascistic Benjamin Netanyahu and a crazed right wing nationalist coalition that is destroying the state of Israel. But lawyers aren’t comfortable speaking in those terms. We’re much More comfortable saying, well, he’s attacking judicial independence, and that would destroy democracy in Israel.

But in fact, if you look at a number of countries around the world, I mean, if you wanted to be a Netanyahu apologist, you could say he wants to make. Israel more like New Zealand or the Netherlands. And we don’t view either of those countries as anti democratic. Or when he says that the prime minister really should be able to appoint whomever he wants to the Supreme Court, he could say, that’s the way we do it in the United States.

That we now realize that the winner of a presidential election, if he or she has compliance, Senate can pack the court. It’s as simple as that. Um, You know, as you know, you were very kind enough to mention some of my books. I don’t like the U. S. Constitution. I don’t think we’re particularly a democracy.

But I do think that we have a huge beam in our own eye with regard to discussing what a modern judiciary should really look like and how it should act. But we’re uncomfortable. With many of these discussions, so it’s easier to move to an abstract plane and to denounce Bush versus Gore to go back to the topic of today’s discussion as kind of a rank violation of the rule of law, um, which is It might or might not be depending on your very controversial notion of the rule of law, but what makes Bush odious is, to put it mildly, the optics and the belief that the judges themselves were in bad faith.

Yes,

[00:11:50] Jeremi: well and it is a somewhat unique decision in our history. It seems to me as a historian, not as a legal scholar, um, because there were very few cases where the Supreme Court has been that directly and imminently involved in the outcome of an election. The other example I think of, of course, is the Electoral Commission created after the 1876 election, where there as well, the members of the court seemed to side with the party that had put them on the court, right?

[00:12:19] Sanford: Yeah, but, you know, this discussion again can go two ways, because first of all, we elect presidents through a bizarre, indefensible process. Indefensible in 2024. In 1787, one could actually believe that the Electoral College made a modicum of sense. It makes no sense today, but that is the system we’ve got.

And what does Is to generate the possibility, which was realized in 2000 and not in 2016, but in 2000, that a very, very close election. could decide the entire presidency. And if you have a certain, I would say somewhat naive, civics book faith in the judiciary as an institution and a rank suspicion of partisan election officials, because it’s not that the Florida recount was necessarily being done again by, you know, Rawlsian purists behind veils of ignorance.

The Florida Secretary of State, very notably, was the head of the Bush, uh, Cheney campaign, and, you know, one could certainly find the intervention by the Supreme Court questionable or odious, but it’s not that we should applaud necessarily the way American elections are carried out. We have a dreadful system of state elections, um.

For all sorts of reasons, I mean, the paradox in Florida is not only the partisanship of some of the election officials, but also the rank stupidity of the democratic election head or clerk, whatever her name was in Palm Beach or West Palm Beach, who chose the butterfly ballot that confused people. She’s a Democrat.

She did not want to help the Bush campaign. Right. She simply picked a ballot design. That worked out that way. So what that illustrates is the degree of reliance we put in borderline competent conscientious. There’s no doubt she was conscientious, but she was also Incompetent in a certain very important way.

So the Florida process was flawed in so many ways. And if you have faith in the judiciary and faith in something called the law. You could say, look, when you have these sorts of disputes with such high stakes, we want the neutral and detached magistrates applying the law to make the decision. The problem is, I say, is that.

In 2000, for a sophisticated person to talk about neutral and detached magistrates just sounds almost literally incredible, but that’s part of the crisis of our time. That they’re the kind of assumptions we made and served as a foundation of the American constitutional order are just, you know, Marx’s famous phrase, all that is solid melts into air.

The kind of solid beliefs we have about the foundations of the American system are melting things. into air, and that’s really scary in many ways, Zachary, how do we

[00:16:59] Zachary: acknowledge the truth about the politicization of many of these judicial institutions and and and constitutional processes themselves, while also rebuilding or at least reshaping Americans relationship with the law and their faith in these processes?

[00:17:14] Sanford: The only honest answers. I don’t know. That, um, I mean, is it a matter of creating new intellectual foundations, or is it a matter of reconstituting our political culture? Because you know, I wrote a book on the Federalist, which is called The Federalist Papers Today. That’s a wonderful book, too. I read that.

But yeah, that’s, Federalist Papers is a 20th century notion for a series of 85 essays that were published as The Federalist. If you actually read the essays, which almost nobody does, the Federalist has been reduced. I

[00:18:00] Jeremi: still assign them to students. The whole 85?

[00:18:02] Sanford: Uh, no. Okay, because what my argument is that the Federalists have been reduced to a greatest hits.

That’s right. In some cases, four, quite

[00:18:11] Jeremi: literally four. 10,

[00:18:13] Sanford: 51, 71, a few others. Right, right. In other cases, maybe six. It is certainly the anomalous course that not only assigns all of them, that we even sign as many as a dozen, but the heart of the Federalist, I would argue, is about character and the need to have balance.

A what an 18th century theory was called a little are Republican sensibility, devotion to the common good, um, a rejection of a notion of politics built around simple striving for self interest. Often called a liberal understanding of politics, I think that’s fair. I think that liberalism does emphasize the priority of interests as against what is now viewed as an almost utopian notion that we should put on the shelf our Notions of what would benefit us in favor of what would really serve the common good.

So that’s just another way that the Federalist now reads. Assuming you can decode the 18th century English prose, like, you know, the past is a different country. They think differently from the way we do. And so taking Madison’s emphasis on, you know, virtue. Politics of the public interest just seems naive and we’re very quick to say altogether correctly that James Madison was a slaveholder who was trying to defend the interests of what would later be called the slaveocracy in a number of his proposals.

So come on now, you know, don’t really take him all that seriously when he talks about, you know, virtue and public interest. So I really don’t know how you. Recreate a sense of a commitment to a general welfare and an individual psychology that puts community ahead of self interest. Um, that I think is the great challenge of our time.

There’s very important, you know, two books by Steven Levitsky and Daniel Ziblatt. The first, How Democracies Die, the second one on minority tyranny. And in both books, the one key word. You have to take away one key word is forbearance that a democratic politics depends on a willingness to not take advantage of all of your legal rights to forbear to recognize that we’re in this together.

You don’t find much forbearance. At the Harvard Law School last semester, I taught a course on compromise, which I think is an extraordinarily important and under theorized topic. And quite frankly, you don’t have many people these days who say, you know, really the most important thing is genuinely to listen.

To people on the other side and try to figure out workable compromises that by definition will mean that you have to make some concessions you really don’t like. In return for concessions from them, but this is the way a pluralistic divided society works. The right wing is absolutely open about its disdain of the very idea of compromise.

The left is more mushy on that. You know, Joe Biden. Is nostalgic for the good old days where he could strike compromises with segregationists and, you know, and Republicans, et cetera, who. And he voted for Clarence Thomas and he passed a lot of legislation, but those days are gone. Biden is living in a fantasy world and you might even prove of his fantasies, but there’s still fantasies in terms of our current politics and a lot of Democrats and many days of the week.

I’m with that. Group would say, no, the task is try to crush a dangerous Republican party rather than to forbear and make nice with fascistic Trumpistas. I, but I don’t have a five point plan on how to save the country with regard to

[00:23:47] Jeremi: the court. It’s, it’s ironic, but it does seem that, uh, Chief Justice John Roberts, who in 2000 was an advocate, uh, in Florida for, uh, George W.

Bush, uh, but that John Roberts now probably comes as close as anyone, uh, at least in his public performance. To what you’re describing as this compromise position as forbearance, it does seem if you if one thinks about his ruling in the Obama administration case on health care, what we’ve learned about the debates within the court over Roe v.

Wade, it does look like Time and again, he’s looking for these compromise positions that will, in a sense, uh, please a little bit of both sides and preserve some forbearance, some perception of impartiality for the court. Is that a, is that a fair representation?

[00:24:38] Sanford: I think it’s fair. I don’t particularly like Roberts because I think in other areas, um, he is a faithful servant of corporate interests, mainly in statutory interpretation.

That being said, I think you’re right that he’s an institutionalist. He lost his primary ally when Steve Breyer retired from the court. Breyer is an extraordinarily interesting person. He has now returned. to the faculty of the Harvard law school for real, not simply showing up every now and then as the great eminence.

But as a member of the Harvard faculty, he teaches courses. He actually spoke to my course on compromise with its six students. Wow. And Breyer really was devoted to forbearance and trying to find a median voter. solutions. He, to, to be quite frank, he never presented himself as a devotee of some kind of very abstract rule of law.

imperative so that come what may, regardless of consequences, he would support what the law required. I think that he viewed law, particularly in the extraordinary, peculiar institution of the Supreme Court, that we rely. on justices to be statesmen and stateswomen thinking of what is best for the country, not to defy the law, but to realize that the law is open ended and ultimately should be interpreted in ways that will serve the overall interests of the country.

I have argued publicly that the current Supreme Court majority is the most Dworkinian set of justices in our history. For your listeners who might not catch the reference, Ronald Dworkin was an extraordinarily important jurisprudential figure of the late 20th and early 21st century. He died now about, 10 years ago, but he wrote a very famous book called Taking Rights Seriously.

And it was built around the conceit that the ideal judge would be somebody he called Hercules, who was committed to discovering the singular right answer to all judicial conundrums and would fearlessly impose the right answer on society regardless of consequences because that’s just what it means to take rights seriously.

This became a very influential vision. That is not Breyer’s vision, that, yes, you should take rights seriously, but you should also take overall consequences at least as seriously and try to preserve a working constitutional order. The current majority of the Supreme Court presents itself as a group of Dworkinians.

That is, they believe there are singular right answers that they’ve come up with, and that they can impose regardless of consequences. This is what Justice Alito argues in Dobbs, that he’s simply the faithful servant. Dobbs is the anti abortion decision. That he’s Simply the faithful servant of the law or Justice Thomas in an extraordinarily bizarre and stupid decision on the regulation of guns in New York State, where he says, Look, this is just what the Second Amendment means, and our duty is to enforce the original meaning of the Second Amendment.

Come what may, he says, From one perspective, that is Dworkinian to the core. Ronald Dworkin as a person would be appalled by these particular cases. But what I’m referring to is a certain sort of self presentation that we’re not statesmen and stateswomen who Have this extraordinary, peculiar role in and a what is an exceptional American system of government in the way it imagines the role of its apex court.

Um, so they don’t talk openly about that set of tensions. Instead, they present themselves, you know, They snap their suspenders and say, I’m simply enforcing the one true understanding of the law. Um, I disagree with that, but I think it is important to realize that the kind of more openly pragmatic understanding of somebody like Breyer is now absent on the court.

Zachary. Is this sort of

[00:31:01] Zachary: vision of law, as I think you’ve identified it, law is philology almost. Is this a new story, uh, in American jurisprudence, or is it, is it harkening back to, to an old theory?

[00:31:12] Sanford: It’s both. Uh, Justice Black, Hugo Black, who was a true hero of mine when I was your age and beyond that. Um, a great, great civil libertarian, probably the most committed civil libertarian in our history in terms of freedom of speech.

And when was he on the court again? Um, 1938 to 1971. So quite a long time. Quite a long time. And very interesting guy from Alabama. He had been a member of the Ku Klux Klan. Um, that was discovered only after he was confirmed to the Supreme Court. He gave a national radio address saying it didn’t matter.

He had mended his ways. And in fact, he clearly had. Um, but he presented himself as what today we would call an originalist. So that I read a lot of his opinions. Um, when, you know, I was in an undergraduate and graduate school, they taught me about John Lilburn and a bunch of other obscure English and people we today call American progenitors of a free speech tradition, John Milton.

English poet. Um, and he said, you know, I’m simply the vessel through which the framers are speaking. And the framers were committed to a maximalist notion of free speech. As it happens, a number of very gifted historians have challenged that as an historical perspective, but what I learned is that the American tradition was the tradition of devotees of free speech.

Similarly, Black wrote a great opinion in 1947 saying that the 14th Amendment was intended to apply all of the Bill of Rights to the states and that the Supreme Court was wrong. in letting the states continue to do a number of things in violation of the Bill of Rights. Again, huge historical controversies about that, but it was an originalist methodology.

Um, so the idea of originalism is not brand new. Um, Roger Taney had also adopted it in Dred Scott. Um, this is the first time in American history that you have had a majority of the court self consciously committed to a notion of originalism. But by this point in time, it is obvious they’re not trustworthy historians.

I mean, the sad truth is that Hugo Black, Was not a trustworthy historian. If you’re an academic where you look for trustworthy history, not to be written by amateurs. who make it to the federal judiciary because they know senators or presidents, even if they’re very smart. John Roberts majored in history at Harvard, Elena Kagan majored in history at Princeton.

They’re not professional historians and rightly or wrongly by this time In our culture, we distinguish between professional historians who have received a certain kind of disciplinary training and who basically steer away from very confident pronouncements that this is the singular truth. Um, again, without in graduate school, this is 60 years ago, there was a lot.

of writing about American national character. Big books written by eminent people. Sure. Trying to reduce America to a liberal understanding, to an entrepreneurial understanding, to this, that, or the other. Louis Hart, Daniel

[00:35:48] Jeremi: Boorstin, all of these.

[00:35:49] Sanford: Understanding. Today, I don’t think Any major historians think that way.

They would say, Look, we’re a remarkably pluralistic society. There is no singular way of being American. In my book on The Federalist, one of the essays I particularly concentrate on and always teach, and I lament that it is not part of the greatest hits, is Federalist No. 2, written by John Jay, in which he says, You know, isn’t it wonderful that Providence chose to settle the new world with people who are basically all alike in language, religion, national origin, and manners.

Now, John Jay was a very smart guy. He lived in Manhattan, and he knew even then that this Wasn’t true, but he thought it was necessary. I think he thought it was necessary to portray an image of a homogeneous singular American nation. Because that’s the only way you might persuade people that it made any sense to ratify a constitution that would establish a consolidated, very powerful government over territory ranging from what is now Maine to the southern border of Georgia and over to the east coast of the Mississippi River.

Some of the opponents of the Constitution said how can you believe that the singular government could actually regulate people so different as people in Massachusetts and Georgia? That was a good question in 1787. It’s a good question today. So we have this obvious interest in trying to say, look, We really do have to figure out a new consensus.

Jeremy might be old enough, just barely old enough, to remember when consensus was one of the leading paradigms. Sure. Richard Hofstadter. Of American historians. Yeah. And today the notion of consensus is an absolute shambles. But how do you operate? a complex, wildly fragmented and diverse political order in the absence of some kind of consensus.

And to come back to your question, how do you recreate a consensus out of a fragmented society? And I really don’t know what the answer to that is. So

[00:38:46] Jeremi: Sandy, we, we could listen to you, uh, elucidate these issues for forever. And you’re, you’re so, so thoughtful in your integration of history and legal scholarship, uh, and, and wisdom from interacting with these issues for so long.

Where, where I’d like us to close would, would be to really take all. Everything you’ve shared with us and think about the current moment we’re in and I’m, I’m not asking you to predict what the court will do. Um, we’re here in early January. And as you said to me as we were walking in to do this podcast, it’s impossible to predict what this court will do.

Uh, maybe that’s good. Maybe that’s not. But, uh, Sandy Levinson as world leading legal scholar, what would you want the court to do in this situation?

[00:39:32] Sanford: Let me answer both of your questions, want, and then predict today that is on January 8th, 2024 at around 1030 in the morning. What I want them to do is to declare that Donald Trump is ineligible for the presidency under a reading of the plain text of section three of the 14th amendment.

Now, what do I predict they will do?

I think. There is a 20 percent likelihood that they will disqualify Trump, partly because I think that is the best of a disputed set of legal understandings of Section 3. So if you are devoted in the abstract to the rule of law, come what may, I think that’s the correct solution. Give it 20 percent possibility.

If you want to go up to a 40 percent possibility, then I would add into the mix the fact that John Roberts and Brett Kavanaugh, in particular, may very well agree that Donald Trump is a disaster, not only for the country, but also for the Republican Party. And quite frankly. I think that many, many Democrats are depending on Donald Trump to be the nominee because they believe that Joe Biden can beat him.

And quite frankly, I think Donald Trump might be the only Republican Joe Biden might beat at the current moment for a variety of reasons that we don’t have time to go into. So If Trump were disqualified, Nikki Haley might very well become the nominee. And were I a Biden campaign official, I would be terrified of that possibility.

So what are some other possibilities? Another possibility is that the Supreme Court will say, well, section three, the 14th amendment doesn’t apply to Donald Trump as a president, because there is this bizarre reading of the amendment that says the president is not an officer. I’ve never understood that argument.

In the United States. I’ve never understood. We don’t have enough time to go into it because it requires believing, you know, Alice called six impossible things before breakfast. But there are some friends of mine, competent lawyers, who make the argument and the court might be tempted by it because it would just push the issue out of the court, 30%, 20%.

I’m actually also floating the possibility that Samuel Alito will write an opinion saying, you know, one of the strange things about the United States is that we don’t have national elections. Every election in the United States is a state or local election. And that means that states and localities get to decide who’s on the ballot unless their decision violates the Constitution.

So, if a state were to say, no Jew can run for the president, that would be unconstitutional. No African American can run for the presidency. That would be unconstitutional. But, Otherwise, states would have very high leeway to decide who is eligible and who is not eligible. And so, if the Secretary of State of Maine comes to the reasonable conclusion, and it is a reasonable conclusion, that Donald Trump is an insurrectionist and is therefore ineligible to run, then That’s just what our federalism allows, just as Alito told us in Dobbs, that our federalism allows Texas to criminalize all abortions, while California does.

Can throw out the welcome mat in behalf of reproductive rights. So people say, Oh no, this is just crazy. How could it be that Donald Trump could be on the ballot in Texas and. You know, in Iowa, et cetera, but excluded from Maine and Colorado. And the quick response is that’s just what federalism means. The attraction of this is that.

You could even imagine getting six or seven votes for it because it allows the court to dodge the issue and to say, We’re not making the decision. We’re not saying he is eligible to run. and therefore Colorado is behaving illegally. We’re upholding Colorado, but Colorado doesn’t make law for the country.

They make law only for Colorado. And so, you know, I’d be inclined in some moments to say that Would be a 40 percent possibility. There’s also the argument that, well, I believe Donald Trump was an insurrectionist. You believe that Donald Trump was an insurrectionist, but he’s not been convicted in a court of being an insurrectionist and somehow or other.

He’s got to be convicted before he can be called insurrectionist. There’s also the argument based on a decision on circuit by chief justice Article section three isn’t what lawyers call self executing that Congress has to pass a statute. I don’t think that’s correct, but I, you know, I don’t know if we’re going over 100 percent or not, but I can imagine.

You know, a 20 percent likelihood that they would go that route because again, they would say we’re not making a substantive decision on Trump one way or the other. That’s up for Congress. I think they would love. For Donald Trump to keel over tomorrow, as I suspect is the case for most, but not all members of the Republican party.

I think there would be private rejoicing if he were to keel over. But there’s no reason to think that will happen. And so the court is going to have to make some decision that is going to alienate an awful lot of people. And then that raises What for some people is the most important question, and this comes back to the idea of consequences.

Will the Trumpistas honor a decision that Donald Trump is ineligible to run for the presidency? And so we’ll circle back to Bush versus Gore. The most important single thing about Bush versus Gore. Is that Al Gore was a good sport? Yes. And on December 12th, 2000, or December 13th, 2000, he came out and said, A.

I don’t agree with the decision, but B. I honor the role of the Supreme Court in our system of government. We lost our case, and I have called up Governor Bush to Congratulate him on his becoming the president elect the de facto president elect. Why did Gore do that? I actually gave a talk in London a number of years ago saying that it’s essential to realize that he was the son of Al Gore senior, the.

In context, liberal senator from Tennessee who supported Brown versus the Board of Education on the grounds that the court had spoken and the people of Tennessee had to honor the decision. He lost. His seat in 1968. But I think that Al Gore Jr. is a teenager, was inculcated with a notion of respect for the Supreme Court as an institution.

That’s almost a quarter century ago. Right. And the current Supreme Court is at historic lows in terms of its approval by the public. And that also has to be taken into account by any discussion either of Bush versus Gore. Or of Trump versus whoever

[00:49:46] Jeremi: Zachary, how do, uh, young people like you think about this?

I know, uh, obviously the election is a, is, is a growing issue of concern for, for people in our society as we’re approaching November 2024. And of course you as a, as an early voter now, as a, as a younger voter, uh, you have a big stake in this and I, I know your colleagues and other students do. Um, so, so how does this.

This discussion resonate with you. Do you think that, um, the court is the court’s decision will be seen as legitimate by, by other young people? As I think it was in 2000, there were many people upset with the Bush v. Gore decision, but I remember on college campuses, people also respected the court and sort of agreed with Al Gore that if the court makes a bad decision, it’s still a good court and we need to go along with that.

What, where do you think we are with college students today on these issues?

[00:50:42] Zachary: Yes. I think, unfortunately, or maybe even fortunately, there’s an acknowledgement, uh, among most young people, I think, that the court makes its decisions, as we began this episode, mostly on political grounds and less on, based on some abstract notion of the law.

Um, and I think that that’s on both sides. Um, and I think that that’s dangerous because it, it means that there’s less faith, faith in the process, um, less, less, less of a sort of democratic consensus. But I think it’s also. Promising because it shows that, that, that, that we are aware of, of, of what is a problem with our system and maybe with, of the need for some new consensus and a new way of, of, of fixing, of fixing, uh, that, that particular process and recreating a consensus that maybe once existed, or maybe it’s, it’s, it’s, it’s also positive because there’s an acknowledgement of, of a, of a historical truth, which is that, that the politics, uh, influence the court, uh, in enormous ways.

Um, and so I think that there’s, there’s less reverence, less respect for the court than there was five, 10 years ago, but when, when I was first learning about, about the Supreme Court, but I do think that, that, that maybe there’s a better understanding or a more complete understanding of how the court makes it.

[00:51:56] Jeremi: Is there any understanding at all of what I take to be Sandy’s central point? that judges in the Breyer model, in the Stephen Breyer model, not his politics, but his approach to being a judge, that in a sense they are more statesmen than philosopher kings finding some essential truth in the law. I worry

[00:52:15] Zachary: about that because I do think that, um, in some ways, maybe, uh, originalism or at least some semblance of it has, has won the, the, the sort of education war because I do think at least as I was taught, the constitution is taught as some document that one has to go back to and find the right answer somewhere between the lines.

And I think that, um, there needs somewhat, there needs to be a place, a forum like this to make a compelling. case for the opposite, which is, uh, exactly as you expressed it, judges as statesmen, as people who, whose job is not simply to interpret a text like some biblical philologist trying to like test the etymology of every word and, and, and the ink on the paper, but someone who, who really understands, uh, the law in a broader societal.

And historical context, right?

[00:53:01] Jeremi: Right. That essentially, this is, uh, Carl von Clausewitz’s point about war. It’s the same that applies to law, right? It’s politics by other means. And it’s understanding the politics of your time and weighing principle and pragmatic. concerns at the moment. I can’t think of a better place for us to close this episode and to remind readers how important it is to read and listen, uh, to Sandy Levinson.

Uh, I think he’s been making this argument, uh, for decades now that our constitution matters deeply, not because it’s a totemic, uh, Moses like set of 10 commandments, but because it actually, uh, contains a set of principles we need to argue over. and reform and revise as our society evolves and, and that’s the moment we’re in.

The Supreme Court has to make some very tough decisions, tough decisions, not just about what the constitution says, uh, but what it means, uh, in the world that we’re in today. Uh, Bush v. Gore in 2000 was a flawed decision, but as I think Sandy has shared with us, it was a decision that actually attempted to at least address some of those issues.

And of course, there’s much further we have to go now. Sandy, thank you so much for joining us. My pleasure. And Zachary, thank you for your thoughtful poem and your, your insights as well. Thank you most of all to our loyal listeners for joining us for this episode of This Is Democracy.

[00:54:22] Outro: This podcast is produced by the Liberal Arts ITS Development Studio and the College of Liberal Arts at the University of Texas at Austin. The music in this episode was written and recorded by Harris Codini. Stay tuned for a new episode every week. You can find This Is Democracy on Apple Podcasts. Spotify and Stitcher. See you next time.