Reading Bush v. Gore Decision Excerpts | A Primary Source Close Read

0:01 Hello, and welcome to another edition of the Bill of Rights Institute’s. Close Reads. Really glad you’re here. My name is Kirk Higgins, and for those of you who are new to our Close Read format, every other Thursday, we work our way through primary sources from throughout American history, looking for and ideas and things that we can unpack and discuss and hopefully help us better understand what’s going on in our nation.

0:21 So today we’re looking at an important Supreme Court decision from the 20th century. It’s Bush v. Gore from 2000. And to help me with unpacking this, I’m fortunate to be joined by Dr. Josh Dunn. Josh, thanks for joining me. Thanks for having me. Great to be with you.

0:42 So today, like every week with our Close Reads, we can’t go through the entire decision that we’re going to be looking at, but we’re going to look at a few different excerpts. And one of the things I like to start out with, Josh, is thinking about sort of a big question that can guide our conversation this week. For me, this case, it’s a complex case. It’s one that’s discussed a lot. It was very controversial at the time, but it brings up a lot of questions

1:05 that I’m seeing today in the news, which is the integrity of the Court? And how is it that we think about the place of the Supreme Court within our overall political system and our constitutional system? I’m just curious, from your opinion, what is it that you think about this case that we should think about when it relates to the role of the Court and sort of the role of the Court within our constitutional system?

1:27 Great question. So in some ways, you would have to say that this case is of limited significance, at least for the Court itself. That is, the Court, and we’ll probably talk about this tried, very explicitly tried to limit the reach of this ruling precisely because it realized what it was doing was so extraordinary.

1:47 But that then points to the fact that it was drawn into this very significant election controversy that, of course, had an effect on the election itself. And again, we’ll probably talk about this. It’s not that the Supreme Court selected Bush, but it foreclosed any options remaining for Vice President Gore in the election.

2:09 And so that really finished the process. It tells you that the Court is there. It tells you that these contestants in these contested elections are going to turn to the Court when there are significant outcomes that are in dispute. And then the question, of course, is how legitimate are the legal claims?

2:34 And at the core of this case, I think, is the legitimacy of the legal claims and then the reasoning of the Court that the Court ended up relying on to resolve the case. Great. Well, with that, let’s dive into the case. Great. So, Josh, just to start with, thinking about the historical context of this case in particular.

2:54 And we’ve got these now, this big constitutional question on the table. We’re talking about 2000 itself. So could you maybe just let us know what was going on in 2000? What was the political atmosphere like from a historical point of view? And then we’ll kind of transition that into what actually happened on election night in 2000. Yeah. So the election of 2000, everyone expected it to be very closely

3:17 and tightly contested going into election night. I think if you actually look at the circumstances leading up to the election, by many measures it should have been a very easy victory for Vice President Gore. Political scientists often will look at the performance of the economy in the years

3:38 immediately preceding election as the best predictor of an electoral outcome. And the economy, of course, had done very well in the 1990s. And so by that measure, it should have been, again, a fairly easy victory for Vice President Gore. However, some of the other controversies and scandals surrounding the Clinton administration, I think, suppressed Vice President Gore’s ability

4:00 to campaign on those successes because he had to kind of keep his connection to the Clinton administration and some of those candles that are at arm’s length. So that had the effect of actually tightening the race in a way that, given that just the underlying factors of the election, you wouldn’t necessarily have expected. So very closely contested.

4:21 No one knew who was going to win going into election night, and it turned out that election night was really long. Right? Yeah. You have this election seemingly vice President Al Gore and former governor of Texas George Bush are the two candidates that are running.

4:42 And yeah, it’s just this weird mix which often happens in American politics. Right. It’s always sort of a mysterious science. You’ve got these expectations, but then when those expectations get subverted, things really start to, I think coming into question is probably too strong, but people kind of look really closely at what’s going on,

5:02 and particularly when it’s a really close election in only a few states. Again, because the electoral system is how we elect presidents. When it comes down to those few states, those few states become really important. And in this case, Florida became that important state. Yeah, it came down to one state. Came down to one state. Yeah. So election night, it turned out to be very interesting.

5:24 It actually looked, early in the evening like it was going to be a very bad night for George Bush. Most of the media outlets actually called Florida for Gore, but they called Florida for Gore prior to some of the more Republican leaning counties in Florida actually turning in their votes.

5:45 And in particular, some of the counties in the Panhandle, which are actually in the central time zone, they tend to be very red precincts over in that part of Florida. And so the Bush campaign ended up being very angry about some of the predictions that were made. And it could have even had an effect in some of the states out west as well,

6:06 because once it’s called for Gore, then some people might say, well, Florida’s gone for Gore, what’s the chance, what are the chances that Bush is going to have to actually pull this thing out? Nevertheless, as the night went on that of course the media outlets pull back on that prediction and put Florida back into the toss up category.

6:29 And then of course we were all waiting up until two, three, four, and then in the morning and it turned out we were waiting out for several more weeks. That’s right, the election comes down, it gets called, but it’s on such a close vote, they then have this sort of complexity that comes with looking at these different Florida laws when it comes to recounts.

6:51 So recounts get triggered, there’s confusion over how long these recounts can go for, what the accepted timeline is on the recount. So all of this kind of complexity comes into it. But what essentially it boils down to is that recounts were called for and then it’s how those recounts were supposed to take place.

7:12 Excuse me, how those recounts were supposed to take place, and then by when they needed to have them completed. So you have kind of this timeline and then the method by which those recounts are happening is that kind of the way. So immediately on election night, Bush, the final vote on election night actually had Bush up by 1700, some votes, close to 1800 votes.

7:35 In Florida you automatically trigger a machine recounts if the rate is closer than .5%, and that was easily within .5%. And so they did a machine recount. After that machine recounts, Bush’s lead had narrowed to about 325, 327 votes. I forgot the precise number, so it’s much closer.

7:59 And then of course, given that it’s that close, of course the Gore campaign can taste victory. They can see that the distance is small enough, close enough that they might be able to make up that gap of just a few hundred votes. And so then that leads to them calling for recounts particularly, and some

8:23 heavily Democratic counties in particular for heavily Democratic counties. And so then that’s what starts the whole legal process going as well. They’re asking for recounts in heavily Democratic counties and there are the controversies about how they’re recounting those ballots in those counties. You end up with lots of legal proceedings working through the federal courts and.

8:47 The state courts, right? So that’s the final piece of this, right? So we have all these recounts, the legitimacy of the recounts is question the Florida Supreme Court’s involved, they come down with a ruling, but eventually there’s such controversy over what constitutes a legitimate recount when it needs to be completed, and how it is we’re actually going to get to a decision that there comes a point

9:10 that an arbiter needs to seemingly be a part of that. And that is kind of the role the Supreme Court plays in this. Right. Earlier on, I think you mentioned, I think it’s really significant the Court didn’t seek out interjecting itself into this case, but instead it kind of fell to the Supreme Court because there needed to be

9:31 a body that made a decision in the past of the court was the legal one, which I guess through the law that seemed to make the most sense. Right? So, yes, the Supreme Court ended up being the backstop. That was the final place that you could go in this process. Of course,

9:51 the role of the Florida Supreme Court I think is in some ways just as crucial as the US Supreme Court because of some of the decisions they made. It made it inevitable that the US Supreme Court was going to get involved. It actually pushed it under the Supreme Court’s agenda and there was no way that they could avoid it.

10:11 And so again, you have this legal battle over certifying the election. The Florida Secretary of State wants to certify the election. Gore is challenging this. Gore then asks for a full recount. But there had been an entire trial process as well. The Gore campaign essentially lost at trial that ended up going to the Florida Supreme Court.

10:36 The Florida Supreme Court ended up overturning these lower court decisions requiring a full recount of all the undervotes manual recounts of all of the other votes. Interestingly as well, they overturned. And this is something that is often not mentioned as well, but the Florida Supreme Court ended up overturning the trial court on some

10:56 factual questions, some important factual questions. And if you know anything about the role of appellate courts, that’s not their job, right? They aren’t supposed to be making judgments about factual questions because they didn’t see all the evidence. Their job is to decide whether or not the law was properly applied. So that complicated the situation as well. Also, I think forcing the US Supreme Court

11:21 hand, or at least encouraging a certain segment of the US Supreme Court to want to get involved. Yeah, and not to mention that all this is happening over the course of just a couple of weeks. So there’s a lot of back and forth, a lot of paperwork, a lot of arguments that are all taking place. And I should mention too, if anyone’s looking for a good quick

11:43 overview of this, the Bill of Rights Institute is releasing one of our Homework Help videos on this court that lays out from this timeline. Because again I think this is such a complex situation that seemingly gets more complex and that’s kind of the Democratic way sometimes, right? We’re just trying to get to a place where we understand what people are voting for in a way that’s recognized.

12:07 And we have all this complicated process for getting that place. Which brings me, I think, to the first thing I want to take a look at here, which is part of the argument that was included that the Bush legal team brought forward about these recounts is about equal protection, right? So we’re all looking for a free and fair election, or at least that’s what the stated goal of a Democratic collection is.

12:29 It has to be trusted, has to be relied on. And part of that came down to in the legal team for the Bush’s side, that the votes have to be counted equally. So there needs to be some kind of equal measure for what counts as a vote and what doesn’t count as a vote. So Jeff, could you maybe just mention something about what

12:51 the Equal Protection Clause is and then how it was applied in this case? Right, so you have the Equal Protection Clause, part of the 14th Amendment. It guarantees privileges or immunities. That clause has largely been written out of the Constitution by the Supreme Court. So we’re left with equal protection and due process of law.

13:14 Due process laws ends up becoming crucial for incorporating the Bill of Rights to apply to the states. Equal protection, though, becomes quite important in many areas of civil liberties. Of course. Brown versus board of education desegregation, racial discrimination. That’s where you see a significant effect in use of the Equal Protection Clause. But it also becomes very significant when

13:35 the Supreme Court starts actually getting involved in elections and quite importantly, with reapportionment and redistricting. So you go back to very important case, Baker versus Carr. It’s in that case the Supreme Court says that reapportionment is not a political question.

13:56 And what that means is that it’s actually just issueable, so the Court can actually rule on this. Previously they had always ruled that redistricting itself was left to the legislature. That is, the Constitution had committed it to state legislatures and so they had the authority to redistrict and reapportion seats as they saw fit.

14:17 And the argument was that in many states you had houses in state legislatures that were grossly malaportioned. And so, for instance, Tennessee, where Baker versus Car originated, they really had not reapportioned and redistricted their seats since, I think, 1900.

14:38 And so you’ve seen a significant shift in the population moving from rural areas to urban areas. And so people living in rural areas had disproportionate, their votes, had disproportionate power in that system. Then you moved to 1964 and you get Reynolds versus Sims.

14:58 Chief Justice Earl Warren has said that Reynolds versus Sims was the most important decision during his ten years. Chief justice. So that tells you something, given the important decisions that were handed down. But that was an application of the Equal Protection Clause to the redistricting process, reapportionment process, where they said that state legislative

15:18 houses had to be apportioned according to the principle of one person, one vote. Now, again, this was novel. Historically, this has not been the case, and people did not think that it was the role of the Court to apply the equal protection Clause in that way. But that’s when you do see the Supreme Court started using the Equal

15:38 protection Clause as the basis for evaluating election procedures. And in some ways you could say that it ends up becoming the foundation for Bush versus Gore itself. I don’t think that you get Bush versus Gore and the equal protection arguments, absent that initial use of the equal protection Clause by the Warren Court back in the 1960s.

16:02 Yeah. So that’s really interesting because it shows, again, the Court finds itself in this situation, but it has been ruling on these kinds of election things. I think, again, the exception here is making what amounts to an election deciding decision. And of course, here, when they’re looking at that equal protection, what they begin to talk about is, well, you need this equal rule

16:25 for about everybody’s vote needs to count, right? One person, one vote. If you voted, it needs to count. And so you had this is where the famous hanging chads come in, right? Is that how do you determine voter intent if it’s not clear? The idea is there needs to be a remedy for that. But the Supreme Court essentially comes down and we’ll talk about this in a second, but there’s not enough time

16:48 for this to be fairly adjudicated wherever vote is going to count and still fall into this equal protection, or at least that was my reading. Is that pretty close? Yeah, that’s correct. The way that the Florida Supreme Court had mandated the recount was a violation of the equal protection clause. And again, we’ll probably say more about this, but the Florida Supreme Court said

17:10 they needed to recount the ballots, the undervote, and those are ballots where the machine had not recognized someone voting for president. And they said that the intent of the voter should be the standard. And that ends up being crucial for the US. Supreme Court. And the majority at the US supreme Court thought that actually wasn’t a standard at all.

17:33 And therefore that’s what ends up triggering the Equal protection clause because you could have wide variation. Not just across jurisdictions. But even within jurisdictions. Even within single counties. You could have a recounting of ballast where one dimple on a chat might to one group of recounters might say

17:57 that shows that they were trying to vote for one particular person. But across the county. Someone else might say it’s not. Yeah. Democracy is not always the most efficient form of government. I think that’s safe to say. Yeah. And so to make this even more complicated, the Court finally brings down its ruling and it ends up sort of giving two rulings.

18:20 It gives a procurement decision, which is about the recount violates the equal protection clause. So that is it saying, look, this violates the equal Protection Clause. And then the second ruling, as I understand it, is about the remedy or what’s to be done because of this violation of the Equal Protection Clause. But let’s focus on this precarium decision first, and here we have a portion of it.

18:44 So first, I guess what is a peculiar decision and then we can get into just analyzing a little bit of the language here. So officially a procurement is a decision for the court, but it’s an unsigned one. And typically what you see with Per Curiam decisions is where they agree on the outcome, but often they will disagree about

19:08 the reasons for the arriving at that particular outcome. Sometimes it can just be they just want to speak in a single voice rather than indicating that one person was the author of the decision and then other justice is signed on.

19:29 Yeah, so kind of this idea that as we were talking about before, when we’re talking about something as simple as voter intent matters, when the floor Supreme Court hands that down, those fine points log. Are really important. And so the Per Curiam decision sort of covers for that, right? It’s just giving out one, but leaving room, I guess, for disagreement, but just getting to a place where it’s yes. So they agree that they agree on some core issues and so they’re going to announce is

19:53 this and I think partly also just the political circumstances surrounding this. It probably made sense for those who agreed with the reasoning, particularly on the protection reasoning, to issue a per kilometer decision, rather than, again, identifying one justice as the author for the opinion and the others joining it.

20:16 Rather, you could just say this is the opinion for the Court. It’s reasonable to think that they thought that that would look to the public less political. This is the court’s opinion. Right.

20:37 Yeah. And so here we are getting to that big question again of how does this weigh on sort of the integrity of the Court itself? And the way that I read this first portion of the and again, these are just segments. This is not the entire ruling. So I encourage you, we have the link here in our PowerPoint, and we’ll be able to link it in other places, too, to read the entire opinion. But they sort of point to this, too.

20:58 They’re talking about the closest of the election. And it already seems here that the Court is saying, look, this is really close and it’s problematic when you have 2% of ballots cast not registering a vote for President for whatever reason. Right. And when it comes down to that fine of a margin, it seems that the Court is throwing out sort of a cautionary, look, this is really close.

21:18 We don’t necessarily want to be weighing in, but we’re almost our hands being forced to, because there has to be some kind of standard applied to how it is that we’re understanding essentially where consent lies. What are we consenting to? Right. Yes. So this ends up being crucial for the Court.

21:47 Obviously, the election is extremely important. And so these very fine grained distinctions about how you’re going to decide whether or not someone actually intended to vote for someone else, they end up being very important. And that obviously weighs on the five Justices

22:08 who ended up voting to forbid a recount, a full recount. Yeah. And here, in a little bit more of the procuring decision, you see what you call out earlier, Josh, the intent of the voter. And I love this kind of line. This is unobjectionable as an abstract proposition and a starting principle.

22:31 The problem in here is, in the absence of specific standards to ensure it’s equal application, the formulation of uniform rules to determine intent based on these reoccurring circumstances is practicable and we conclude necessary. So to kind of put these in words that I can comprehend, because sometimes the Supreme Court rights above my head. But the way I read this is, look,

22:52 it’s possible to figure out clearly how people voted. And we can figure out a standard for applying that equally. And because we can do that or because the state of Florida can do that, they should do that in order to come to a decision. So essentially the way that I read this is equal protection can happen if we figure out a way to apply it, which seems reasonable.

23:16 And so therefore we need to apply equal protection in this case. Right. So another way of rephrasing that part about the intent of the voter, what the Court was really saying, the intent of the voter isn’t a standard. It’s not a standard. It’s the question. Right. What was the intent of the voter? And so when the Florida Supreme Court said

23:36 you have to recount the ballots and use the intent of the voter as the standard, they weren’t really providing any guidance at all. And so the majority for the Supreme Court was arguing that if you’re going to require this recount, you actually have to establish clear standards so that you won’t get this variation across jurisdictions or within jurisdictions for how much

23:59 of an indentation on a chat might actually come. And so, yes, the court seemed to think that they could have, that it would have been possible to come up with a standard for recounting the ballots that would have been in compliance with the equal protection clause, but it was too late. So there’s no way that they could have done it in the Florida Supreme Court.

24:22 If they wanted them to reach out, the ballots in accordance with equal protection clause, should have done better than just stating the intent of the voter. Yeah, I kind of like that. Yes, you’ve just restated the question. We understand that what the intent of the voter is. Interesting. And I think timing is important to point out here too, because there are

24:43 transitions of power have to happen on a timeline. You have to have a date when it occurs, otherwise you get delays, things get complicated. And so that’s really the pressure that I think is weighing upon this decision, which ultimately makes things really challenging, which is there’s a deadline we’ve got to shift the government from if it’s going to be a handover of power,

25:05 it would be regardless because a new administration is coming in. But whether or not it’s transferring to a candidate of another party or the same party, it doesn’t matter. We’ve got to get to a resolution on this within a timely manner in order for the government to function. Essentially. Yes. And federal law said that there was a safe harbor for Florida actually having finalized the outcome of its election, and that was December 12.

25:29 And the Supreme Court handed down its decision on December 12, I think actually after the time on December 12 that it had to be completed by and then the electoral college was going to vote on December 18. That was of course, weighing on the Supreme Court as well, which was if Florida can’t complete

25:53 the recounts in time to actually legally certify, satisfactorily certify its outcome, then what happens to Florida’s electors? Does Florida actually get to participate in the electoral college? The Florida legislature had actually held hearings about what to do under those circumstances and they were actually

26:15 considering simply sending their own electors. If for some reason the process wouldn’t have concluded in time, they were going to vote to send their chosen slate of electors to the electoral college, that was actually on the table for them. And the outcome would have been the same because Republicans controlled both houses of Florida legislature.

26:35 So they of course, would have sent Republican electors to the Electoral college. Right. Man, that would have certainly been another interesting sort of chapter in this whole thing. And so this is the final piece of the Per Curiam decision. Then we’ll go on and look at the minority decisions. But I thought this was really significant

26:57 because again, here’s the court sort of having its own self reflective moment where it says 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 lead the selection of the President to the people through their legislatures and to the political sphere. To me, this gets right at the heart

27:17 of this really core question that’s happening here. So we have this stuff about the equal protection we have, how it is we’re going to get, how it is we’re going to address that. But fundamentally at the core of this is a question about what constitutes a free and fair election, meaning people have access to vote and it’s recognized that that vote is legitimate. And how is the court weighing in?

27:38 So the court being the third branch, it’s apart from the political system, very deliberately so in the design of the founders, that it’s not intended to have a political voice because it’s supposed to be a neutral arbiter on the law. And this is the court recognizing that and recognizing that it’s now in a tricky situation because the law is what’s determining the validity of the elections. So it’s this sort of complicated cross pollination.

28:02 But I think the court is trying to be very clear here in saying, look, we recognize this can be seen as us overstepping. We didn’t seek this out essentially, but we are ruling on this because it’s our responsibility, as I say, our unsolved responsibility to resolve the federal and constitutional issues within the judicial system has been forced to confront.

28:24 So they’re being forced to confront these here. Right. So again, I think the court recognized that this was an astonishing exercise of power historically to intervene in an election this way. And it clearly did not want this to become a precedent that the court would be called

28:51 upon to resolve elections regularly in this way. And so that’s why in the decision itself, they said that they were limiting that this analysis was limited to this particular set of facts only. So what they were really saying was, this has no presidential value.

29:11 We don’t want to get involved. We feel like we have to get involved, but we’re trying to preclude people from relying on this in the future. So you could view Bush versus Gore as a one way ticket for one day only. That’s what they’re trying to say now. It turns out that lower courts have at least cited Bush versus Gore hundreds of times.

29:32 It’s unclear how much effect those citations have actually had, how much it’s actually shaped the reasoning. But the Court clearly was trying to limit the long term effects of this decision partly because of those legitimacy questions that they didn’t want to become seen as the arbiter of certainly

29:54 presidential elections, but really elections as a whole. Yeah, because it’s a tricky position for them to be in. Because I think one of the things that’s interesting to me is at least that the Court has enough legitimacy to make this ruling and for people to adhere to it. Right. So the Court campaign

30:15 doesn’t continue to try and litigate the decision after I mean, maybe immediately after, but not for years and years and years afterwards trying to undermine legitimate expression. We still have the transfer of power, which, in my opinion at least, has something to say about how the Court is seen as a legitimate arbiter, a non political arbiter in a lot of senses.

30:38 Oh, yes. Within minutes of the Court announcing this decision, Vice President Gore conceded, said that he wasn’t going to challenge it anymore. Right. The Supreme Court has spoken. That’s the kind of authority that the Supreme Court had. And there are some who argue that that’s the best justification for the decision itself, that if this process had

30:59 continued, we would have been mired in even deeper political controversy. The outcome probably would have been the same, but the questions of legitimacy would have been even worse. So, for instance, Richard Posner of the famous lower court judge, appellate court judge, that’s essentially his treatment of this case.

31:20 The Supreme Court’s reasoning is not terribly persuaded by it, but they were trying to fix a problem that had been created by lower courts. They didn’t really have any other alternative that wouldn’t have been actually worse for the country and that if the recount had actually proceeded, bush still would have won. It’s just it would have taken longer than questions of the Electoral College vote.

31:43 All of that would have been hovering over everything. In fact, there was a consortium of news organizations that went and recounted every ballot after the election. And by every conceivable method of recounting the ballots, Bush still would have won. There was one method that was not on the table that no one was considering where Gore would have possibly squeaked out a victory,

32:10 this process would have just carried on much longer. Yeah. Well, so the Court makes its peculiar decision and it rules about the Equal Protection Clause and then there’s another ruling about sort of the remedy. So now what happens because of this violation of the Equal Protection Clause in that decision? So the procurement was seven to two, the remedy was five to four.

32:30 And here we have two different sort of excerpts from minority opinions. One from this first one here from Justice Stephen Breyer, who seems frustrated about halting the recount. Right. And it seems to me that he is concerned

32:51 about sort of the fairness of how this is happening and that he seems as though he thinks, look, you can have this done an equal amount of time, but we’re not even making an attempt to do it, is how I kind of read this. Right. Yeah. So he signed onto the majority opinion, which is interesting because in some ways the ideological factions on the Court

33:12 flips in Bush versus Gore, historically the more liberal block of Justices were much more sympathetic to, shall we say, expansive and flexible interpretations of the Equal Protection Clause where conservatives have been more suspicious of it. And so I think Justice Breyer, part of the reason he signs on with the majority opinion is because he does agree that the equal checks

33:34 and clause should be applied in these kinds of broad ways. But he didn’t, of course, disagreed with the outcome or the remedy, which was to halt the recount. He thought it should have been sent back to Florida so that they could try to develop a standard, an actual standard that could have

33:55 satisfied what he would have regarded as the Equal Protection Clause principles. Yeah. And so then we also have Ruth Bader Ginsburg, who also dissents here again in the remedy. So Bryer was saying, look, sent it back to the state, they need to come up with the remedy if that’s what we’re saying needs to happen.

34:18 And here Ginsburg seems to be poking a little bit at the timing question and, you know, trying to get it again, a remedy that can seemingly turn it back over to the electorate and keep at least my reading, trying to keep the Court even further away from any kind of political question. Am I following that about right?

34:40 Yeah. Obviously she wanted to recount, to proceed, let them go and deal with it. I think some of the question is that if you’re doing manual recounts of every single under vote in the election, you can have pitched warfare over a reach bow. So it’s going to be very close.

35:01 And so the majority clearly thought, well, when they’re going through each ballot that way, it’s going to be impossible for them to finish this in a timely way. Ginsburg is trying to relay some of those fears and say, well, yes, they can do this.

35:24 In pointing to some of the legal controversies that could arise showing, well, the Florida Supreme Court itself has been able to resolve or issue substantial legal opinions within a day, 29 hours of oral argument. So this could be actually done in a more expeditious way than the majority seems to think.

35:45 Yeah, I think her final line here sometimes the Supreme Court justice is almost done. A little flippant or sarcastic, but I like that such an untested prophecy should not decide the presidency of the United States, saying, look, we don’t know if this is going to work or not, but just saying that, saying it’s not going to work shouldn’t be the final decision.

36:06 Well, thank you, Josh. I think just kind of in concluding thinking about is this going to be something we had this ruling in Bush v. Gore. Obviously, questions around whether or not the Court is becoming politicized are always in the news. It seems that they’ve been more in the news as of late, I guess.

36:27 Where should this case reside in our thinking about American history and kind of what do we think is going to happen with the Court moving forward from here? Is this setting up a pattern that may happen again or are we working to try to avoid this in the future? Well, I think it all depends on how close future elections are.

36:48 That’s what it’s going to come down to. My sense is that Bush versus Gore is going to be of limited impacts in the long run because, again, the Court obviously doesn’t want to be doing this on a regular basis as well.

37:11 I think that after Bush versus Gore, many states went and reworked their electoral processes to try and avoid some of these controversies. So hopefully in the future, even in very tightly closely contested

37:32 races in different states, it’s not going to rise to the level because we have recount procedures that are clear standards for recounts and determining the intent of the vote that are clear ahead of time. And so I think part of what this is, you could say that the long term result of Bush versus Gore is that it sent a signal to state legislatures, you’ll clean up your election law.

37:55 So that’s going to be the long term influence of it. Again, I think that overall, the Court, because no side on the Court actually wants to be in this position. All right, conservative block on the Court, liberal block on the Court, neither of them really wanted this or want to be in that position,

38:18 so they’re going to do everything they can to limit the effect and reach of this. Great. Well, thank you, Josh, for joining me, and thank all of you for tuning in and following along again. We’re releasing a Homework Help video on this. What is it is a complex case, but ask some really big and important questions about sort of the nature of our constitutional system, so keep an eye out for that.

38:40 Make sure to like this video if you enjoyed it, and subscribe so you can get notified when that homework help video comes out and when all of our content comes out. We release all kinds of content on this channel, mostly focusing on primary sources and conversations. And speaking of which, please reach out to us on Twitter and Facebook if you want to be in touch or if you have ideas for content that you want us to cover.

39:01 I believe our next close read will be on another Supreme Court case of Wisconsin beyond which would be great. Thank you all again, and we’ll see you next time.