The Nine [90]
Scalia had not planned to write anything and to let the stay speak for itself, but he was enraged by Stevens’s dissent, so he sat down at his desk to respond. (He was so angry that he delayed the issuance of the stay by taking the time to write, even though he was the one who thought speed was so essential.) His own three-paragraph concurring opinion proved the success of the Republicans’ legal strategy—which was far more political than legal. The Republicans had successfully portrayed the Florida court as partisan more than principled, but Scalia betrayed the same bias, albeit in favor of the other side. “The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election,” Scalia wrote. “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.”
In normal circumstances—in all other circumstances—the Court would never have considered something so vague as the casting of clouds as amounting to a genuine legal harm, much less one that required the extraordinary step of issuing a stay. Moreover, in the complex tangle of litigation, the Eleventh Circuit Court of Appeals, in a preliminary ruling on the appeal of the federal decision by Judge Middlebrooks in Miami, had prohibited Harris from certifying anyone other than Bush as the winner of the state. So the only possible harm was that Florida might count its votes and Gore might pull ahead; as long as the Eleventh Circuit decision stood, Gore could not win the state. But for Scalia, that political problem for Bush—that the vote count might look embarrassing for a while—amounted to “irreparable harm.” Scalia was looking at the election entirely through Bush’s eyes; by his own words, the justice was clearly more concerned about producing a clean victory for the Republican than about determining the will of Florida’s voters. Notably, Scalia’s concurring opinion was so extreme that no other justice joined it.
At 2:40 p.m. on Saturday, the public information staff of the Supreme Court summoned the reporters who were keeping vigil and distributed the Court’s order. The decision of the Florida Supreme Court was stayed. Cert was granted. Briefs were due the following day. Argument before the justices would take place in less than forty-eight hours, on Monday, December 11, at 11:00 a.m. Never in its history had the Supreme Court worked so fast.
At his home at the Naval Observatory, Gore passed the news to his family and watched the coverage on television. At 3:11 p.m., he sent a BlackBerry message to his chief spokesmen, Mark Fabiani and Chris Lehane: “Please make sure that no one trashes the Supreme Court.”
13
PERFECTLY CLEAR
By the morning of Sunday, December 10, when the briefs were due in Bush v. Gore, television cameras had already taken up positions on the sidewalk in front of the building. So much news had come out of the Court so fast that every news organization wanted to be ready. The press of media attention was so great that the Court’s police warned the