Well, there it is. The irreparable harm of "casting a cloud." In the long and honorable tradition of injunctions and stays, this "irreparable injury" is a new one. Not just a cloud, but a cloud on "what he claims to be the legitimacy" of what he is claiming. By that standard, of course, every litigant in every case should be granted an injunction to halt the proceeding that offends him: the prosecutor casts a cloud on a claim of innocence; the civil plaintiff, a cloud on the defendant's claim that he has already paid him. And of course vice versa, the defendants casting clouds on plaintiffs and prosecutors. The whole adversary system consists of a casting of clouds

Here is Scalia, waffling, with a little joke based on Alice [in Throught the Looking Glass]:
"Count first, and rule upon legality afterwards, is not a recipe for producing elections that have the public acceptance democratic stability requires."

As it happens, count (or take any action which the law does not specifically forbid) first, and rule upon legality afterwards, is precisely the basis of our free and entrepreneurial system. It
is one of the reasons constitutional law requires the Court to consider only specific "cases and controversies" (in contrast to abstract, hypothetical, or contingent questions) and prohibits
the Court from issuing what are called "advisory opinions."

But none of this, not a word or a concept, is the reasoning or the language* of the law. And the vague, nattering--simultaneously brazen, timid, and evasive--quality of the decision culminates,
of course, in this: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Look at that sentence a minute. What can it possibly mean? It apparently says that, for some reason, the decision in Bush v. Gore is not to be regarded as precedent for any other. But if this were so, it would undermine, at one stroke, the whole basis of American and Anglo-Saxon law. That each case has precedential value, must have precedential value, is the bedrock of our system of justice. Otherwise each case can be decided ad hoc, at the caprice of judges--non-elected, federal judges with lifelong tenure. The Constitution and even the Magna Carta would be superseded, the justices would be kings.

Trifecta of Ignominy

"Count first, and rule upon legality afterwards is not a recipe for producing election results that have the public acceptance democratic stability requires," Scalia wrote. "The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Texas Gov. George W. Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election."

Allow me to paraphrase: "...So we must stop it this instant, lest the unruly, unsophisticated masses ever get the idea that Vice President Al Gore actually won the election because he got more votes than Bush in Florida--as well as the rest of the country. It would perturb them to see Bush inaugurated, and this might make it difficult for Bush to be an effective and respected president."

I've come up empty scouring the Constitution for my right not to be perturbed. In vain, I went back over Article II, which deals with the presidency, looking for a "sunshine clause" saying, "No clouds shall be cast upon the claim of legitimacy of a president."

Nanny Scalia and four fellow baby-sitters of the right freelanced a temporary suspension of our common-law right to know. If their reasoning holds, Republicans will be allowed to impound the ballots in Florida for at least four years so that Freedom of Information Act busybodies can't conduct their planned unofficial recounts of machine-rejected ballots several weeks or months from now.

After that, perhaps the paternalistic caregivers on the high court will take another look at the whole freedom-of- information idea. The truth? They can't handle the truth!
The five conservatives justices hit the trifecta of ignominy with their stay order:

1. They cast a cloud upon the court's moral authority with a partisan 5-4 ruling. If they're just a fractious clutch of ideologues like so many guests on "Hardball," why should we pay deference to their rulings?
2. They all but killed Gore's chances to prevail in a recount or swing public sentiment his way by helping Republicans run out the clock on the Dec. 12 deadline for appointing electors.
3. They all but killed Bush's chance to have the legitimacy of his election recognized by most Democrats

"Some Democrats raised alarms Monday because two sons of U.S. Supreme Court Justice Antonin Scalia work for law firms connected to the case. John Scalia accepted a position with the Miami-based firm Greenberg Traurig on November 7. The next day, Barry Richard, a partner in the firm, said he was called about representing Bush in Florida. A second son, Eugene Scalia, is a partner in the Washington office of Gibson, Dunn & Crutcher -- the firm representing Bush in the Supreme Court arguments. He is not involved in the case. "
 

Judge Merritt urges Justice Thomas to remove himself

A federal judge in Nashville said Justice Thomas faced a serious conflict of interest as a result of his wife's work for the Heritage Foundation. The foundation has close ties to the Republican Party and would probably have a say in the hiring of key government officials if Gov. George W. Bush assumed the presidency. In e-mail distributed on Capitol Hill earlier this month, Mrs. Thomas solicited résumés "for transition purposes" from the government oversight committees of Congress. "The spouse has obviously got a substantial interest that could be affected by the outcome," [federal appellate judge, Gilbert S. Merritt of the United States Court of Appeals for the Sixth Circuit] said in an interview from his home in Nashville. "You should disqualify yourself. I think he'd be subject to some kind of investigation in the Senate." ...He urged Justice Thomas to remove himself from the case in order to prevent any violation of a federal law - he cited Section 455 of Title 28 of the United States Code, "Disqualification of Justices, Judges or Magistrates" - that requires court officers to excuse themselves if a spouse has "an interest that could be substantially affected by the outcome of the proceeding."

1.58 million votes have not been counted a second time

Human Factor Was at Core Of Vote Fiasco Decisions and Leadership Were Erratic, Arbitrary
James A. Baker III asserted on Nov. 8 that "the vote in Florida has been recounted," but 18 counties never recounted their ballots. (Tim Sloan - AFP) 

So close was the Nov. 7 presidential election in Florida that state law required an automatic recount the next day. George W. Bush's lead soon slipped to 327 votes. Republican field leader James A. Baker III repeatedly urged an end to the stalemate, asserting that "the vote in Florida has been counted and the vote in Florida has been recounted."
In fact, 18 of the state's 67 counties never recounted* the ballots at all. They simply checked their original results. To this day, more than 1.58 million votes have not been counted a second time.

" In light of these factors, many Americans who believed that the Court was an institution that could be trusted to remain above partisan politics are now experiencing a genuine loss of confidence in the impartiality of the judicial branch of our government.

The Chicago Tribune website has a piece by Studs Terkel:
This is the first time in the history of our nation that a coup d'etat has taken place--within our own borders. As defined in the dictionary, a coup d'etat is a violent or illegal change in government. We have experienced it in other countries; Chile, for instance. Augusto Pinochet's was a military coup.
The coup that has brought us a new chieftain was civilian in form. As to its violence, it was not viscerally so, though some might maintain that depriving a citizen of his/her vote may be considered a violent act in a democracy.
The coup we have just experienced was illegal. We have been taught in our civics and history classes that our democracy is contingent on the right of every citizen to vote and to have his/her vote counted. That right has obviously been denied to countless American citizens in the state of Florida.