(5 of 5)
Despite its heavy fortifications, the Florida Supreme Court's decision may yet be vanquished. One of the best clues right now to the U.S. Supreme Court's concerns may be Scalia's brief concurrence to the stay order. In it, he expresses doubt--as Florida Chief Justice Wells did in his own dissent--about the constitutionality of letting the standard for counting hanging chads and dimples vary from county to county. And Scalia raises the long-standing Republican concern that multiple recounts may lead to degradation of ballots.
One of the most intriguing issues is the question of irreparable harm. To get a stay, a party has to show it will suffer permanent damage without it. The damage of halting the count seems clear: it will be hard for Gore to win the election if the counting is put off much longer. But it is Bush who got the stay--and Bush who the majority said would be harmed if the counting continued. What would the harm be? It could, Scalia writes, cast "a cloud upon what he claims to be the legitimacy of his election." It's a tricky argument: if the court wants to throw out the votes in the end, it would still be free to do so. But Scalia seems to be admitting that the court is afraid that once the votes are counted--once the genie is out of the bottle--the American public won't believe that the votes should in fact be set aside. Of course, it seems all but inevitable the ballots will ultimately be counted, either by the media or by academics looking to determine who actually won in Florida. If Bush does not in fact have the most votes, it's not clear that delaying the count until after Inauguration Day will prevent a "cloud" from forming over his presidency.
What will happen? The U.S. Supreme Court stay was certainly a major blow to the Gore camp. But Republicans who think it's all over may be celebrating too soon. Predicting how Supreme Court Justices will vote is, even in mundane times, a perilous game. Conservatives have sometimes been disappointed by Kennedy, who has voted with liberals on issues like gay rights and school prayer. And right-to-lifers once counted on O'Connor to provide a fifth vote to overturn the abortion protections of Roe v. Wade, something she has resisted.
These predictions are all the more perilous when, as now, the Justices have a rendezvous with history. The votes of the nine Justices in this case will not only determine their own reputations but, quite likely, the reputation of the U.S. Supreme Court for years to come.
--With reporting by Viveca Novak/Washington and Timothy Roche/Tallahassee