The Supreme Court Today: The Plot Thickens

Lordy, lordy. Just when you thought it couldn’t get any weirder, it does. By a 5-4 vote, the Supreme Court JUST entered an order staying the mandate of the Supreme Court of Florida (known in some quarters by the acronym “SCOFLA”). While the order does not formally order the counting stopped, it stays the SCOFLA order that requires the counting.

The Court’s quick issuance of the stay is remarkable enough on its own. But wait - there’s more! The Court ALSO sua sponte treated the application for stay as a petition for certiorari and granted it, with briefs to be filed tomorrow by 4 pm and argument Monday morning at 11 am. That too, is pretty remarkable, even in the high-pressure world of capital cases.

But wait, there’s STILL more! The only thing missing from this one-time offer is the spiral slicer and the set of steak knives.

Justice Stevens dissented - an unusual move when it comes to grants, usually only done with denials - joined by Justices Souter, Ginsburg, and Breyer. He argued that the stay was not warranted because “counting every legally cast vote cannot constitute irreparable harm.” He argued that staying the mandate violated three venerable rules - deference to state court decisions, avoidance of questions committed at least in large measure to other branches of government, and avoiding federal constitutional questions not fairly presented below. He argued that a stay was “tantamount to a decision on the merits in favor of the applicants” and argued that preventing a recount will “inevitably cast a cloud on the legitimacy of the election.” (Especially if you say it does frequently enough.)

If you thought Justice Scalia could pass that bait, you don’t know him very well. See, e.g., Callins v. Collins (Scalia, J., concurring in denial of cert.). Although nominally avoiding the merits of the case, he said - in a phrase you are soon to hear on an endless loop on pundit shows - “it sufficies to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issue presented, believe that the petitioner has a substantial probability of success.” He disputed Stevens’ suggestion that what was to be counted were necessarily “legally cast votes,” because one of the questions presented by the case was whether they were, in fact, “legally cast” if, say, the chad was merely dimpled. He disputed Stevens’ claim that voting was the way to guarantee legitimacy, noting that counting first “and rul[ing] upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” Moreover, the ballots should not be counted, he said, until the standard determining a vote is set, because “it is generally agreed that each manual recount produces a degredation of the ballots, which render a subsequent recount inaccurate.”

Stay applications are always done in the shadow of the merits, but that seems particularly true in this case, where the parties have already read hundreds of pages of merits briefs on this case during the first go-round. Both the opinions clearly preview the merits.

The unanimity of last week’s decisions (7-0 and 9-0), which now seem a short eternity ago, have given way to the narrowest of divisions. It looks like the folks on the hill will have to work pretty hard to conjure up another 9-0 disposition of this one.

Curiouser and curiouser. Until Monday, that’s today’s baseball!