Reading the Supreme Court Tea Leaves

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The U.S. Supreme Court building in Washington, D.C.

The state of Florida was only six hours into its crash course on undervote counting when the loudest voice in the land said stop.

And maybe for good.

At 2:30 p.m. Saturday, by a 5-4 decision, the U.S. Supreme Court granted the stay George W. Bush had asked for 18 hours before, putting a halt to a rickety process of sorting and counting some 44,000 undervotes just as it was getting under way. Hearings have been scheduled for Monday morning at 11 (briefs were handed over Sunday at 4 p.m.), and as always it is anybody's guess in this unprecedented non-election what exactly the Court has on its mind. But for now, here are some clues as to what they are thinking:

Omen number 1: Sunday, the Florida courts gathered up the Miami-Dade undervotes and got ready to fly them up to Washington. The Court said no thanks.

The five Justices now in the "conservative" box — Rehnquist, Scalia, Thomas, O'Connor and Kennedy — evidently agreed with Bush's claim that the undervote count was not only an unlawful conjuring by the Florida Supreme Court but was doing his candidacy "irreparable harm." More ominously for Gore, they may also agree, as Bush's application claimed, that the Florida Supreme Court decision was unconstitutional, that it conflicted with Article II — which says the legislature chooses electors — and that it violated the due process clause of the Fourteenth Amendment. In which case, they'll toss the whole thing out, and go back to the original certification of Bush as the winner.

Omen number 2: In a concurring statement, Justice Antonin Scalia said that the stay had a "substantial probability" of becoming permanent.

The four in the "liberal" box — Stevens (who wrote the stinging dissent) Ginsburg, Souter and Breyer — felt just the opposite, that the only harm being done in this instance was to Al Gore if the counting was stopped. They also seemed to give deference to the Florida Supreme Court, something the majority didn't have much truck with. Breyer declared the stay a dangerous and self-fulfilling prophecy.

The Bush team now suspects it has finally sussed out the high court's stand on these manual counts and on the Florida high court that set them in motion by its own split decision Friday. And they figure they've got their five votes.

The Gore team is sending in David Boies rather than Harvard's Laurence Tribe to handle the Supremes.

The counting, the counting

Certainly the counts were off to a rocky start. In the Leon County Public Library in Tallahassee, the 9,000 Miami-Dade undervotes — already separated out from the general pile weeks ago — were mere hours from yielding their secrets. Four teams of two circuit judges each had rolled up their sleeves first thing Saturday morning and promised to be done by nightfall, with the tough-but-fair vote-by-vote Palm Beach standard in place and the final number headed toward reliability.

But in the other 60-odd counties hit with a judicial cattle prod Friday night, most canvassing boards were still scrambling for guidance and starting the process of culling out the undervotes from piles as large as 291,000 ballots in Duval County (which had the benefit of Miami-Dade's sorting software) and some 200,000 in Hillsborough. Some had expected to meet Judge Terry Lewis' 2 p.m. Sunday deadline; some were shooting for Monday or later.

When the word from the Supreme Court came down, some counties hadn't even begun to separate out the undervotes. Some that had begun didn't even get the news for another hour. It was going to be a 60-odd-county kitten-herding, and the scattered reports only inspired confidence in the Gore camp and Democrats who had finally seen their dreams come true, if only for a little while. But were they coming true? Numbers had been bandied about: 58 net for Gore, 44 net for Bush in Miami-Dade. In Pinellas County, 272 ballots yielded 2 for Bush and 1 for Gore. All the rest were deemed intent-less.

An oversight by the Court?

Unless those all-important five Supremes have already made up their minds to put a George W. Bush presidency in the books after some obligatory Monday hearings, they might have missed at least one opportunity for efficiency in a process that needs every minute it can get. Couldn't it have authorized the sorting to continue, so that canvassing boards could have their piles in a row and ready for a Monday-evening sprint to beat the 12th?

But the majority opinion wondered aloud whether these undervotes were even legal votes at all. Clearly they had some further questions about the Florida Supreme Court's second shot at reading (and, arguably, writing) Florida law, and clearly they didn't like what that decision had wrought. And they seem poised to do more than tinker with the details.

The majority seemed to feel that it would be harmful to presidential legitimacy to allow the hand count to continue and perhaps undermine the President-elect — read Bush. The dissenting opinion essentially said, Let the recount continue so that we at least have the numbers in case we decide the Florida Supreme Court was right. What's the harm? they wondered. The majority seemed to believe the harm was irreparable.

The Bush consigliere is steely, while Gore operatives look for a silver lining

For the Bush team, suddenly back on the high ground, James Baker was out within an hour to deliver some cautious analysis. "We are pleased by the decision of the U.S. Supreme Court to stay the mandate of the Florida Supreme Court... This means that the partial manual system created yesterday by the FSC will not now proceed." As for why, Baker went on to quote the suddenly wise minority that had tried to save his candidate from the hand counts Friday, and tossed in some "changing the rules in the middle of the game" shots at the ruling Florida four. But Baker wouldn't go any further — he'd had had the rug pulled out from under him too many times over the past 32 days to ascribe any intent to the Court's action. He looked forward to the hearing, and assured reporters George W. Bush's lawyers wouldn't be too tired to show up. For now, waiting until Monday was victory enough.

Gore adviser Ron Klain expressed disappointment at the stay, of course, and that they were "optimistic about ultimately prevailing" in Monday's hearing. David Boies assured reporters he expected prompt and fair action from the Supreme Court, and that the Bush team had "a very heavy burden" in the case. (He's even begun borrowing Baker's "rules of the game" trope.) He also mused that Dec. 12 was a rather softer deadline than the bulk of the Florida legislature was making it out to be.

Boies was clear about what the Gore argument will be on Monday. "There is no federal question here," he said. "This is a matter of state law. No federal court has stepped in to change the result of a national election over the judgment of local election officials."

Klain's main purpose before the microphones was to compliment the canvassing boards of Florida for doing a top-notch job thus far — and to tell the assembled reporters why he thought so: With 13 of the 60-odd counties "fully or partially completed," he claimed, Al Gore had picked up 58 net votes. "The counts were clearly on a pace for Vice President Gore and Senator Lieberman to make up the difference and pull ahead." And some of those counties were Republican.

That 58-vote gain is statistically useless and more than a little suspect; in fact the trend from Miami-Dade was running in Bush's direction. But no matter what happens on Monday, Al Gore doesn't want you to ever forget it.