Usually, when activist conservative judges take a meat-cleaver to the law, they destroy the Constitution & a mere few decades of settled law. This time it's *centuries* of Anglo-American common law. The purpose of a judicial stay is to *prevent* irreparable harm. But they've issued one to *CAUSE* irreparable harm.
America is not a democracy. That much was made "perfectly clear" by the Supreme Court when it first vacated the Florida Supreme Court's ruling that allowed hand recounts to go forward. There is no right to vote in the US Constitution, and the Supreme Court vacated the Florida decision on the grounds that it might depend on the right to vote in the Florida Constitution. Thus, the conservative Court majority officially ruled that democracy is unconstitutional.
The Supreme Court made a similar point in the Dred Scott decision, when it officially ruled that African-Americans were not citizens: there are no rights in America except those recognized by the Supreme Court. This is a nation of MEN, not laws. Forget high school civics, forget the Declaration of Independence, forget the Constitution, this is raw POWER we're talking about, and whatever five schoolyard bullies say, goes.
But of course, the American people won't stand for that. Jack Nicholson had it right: We can't stand the truth. We need our dictatorship cloaked in the cast of rags of democracy. We need a g-string at the very least. And that's precisely what Antonin Scalia offers us.
Usually, when activist conservative judges take a meat-cleaver to the law, they go no further than destroying the American Constitution, based on a mere few decades of settled law. In Employment Division vs. Smith, in 1990, for example, Scalia hacked away the Free Exercise clause of the First Amendment freedom of religion, overturning 47 years of rulings based on Board of Education v. Barnette (which recognized Jehovah's Witnesses's' right to not salute the flag). Scalia pegged his ruling to Minersville School District v. Gobitis, an earlier decision that denied that right, which Barnett overturned in horror once the Court saw the outpouring of religious violence against Jehovah's Witnesses that followed from it. In a forthcoming book on the case, To An Unknown God: Religious Freedom on Trial, Oregon law professor Garret Epps compares Scalia's use of Gobitis as precedent to basing a ruling on Dred Scott or Plessy v. Ferguson.
But that's nothing compared to what's just be done.
In this case, the black-robed schoolyard bullies of the Court have overturned so many centuries of Anglo-American common law and so many precedents it's impossible to keep track. The purpose of a judicial stay is to prevent irreparable harm. The classic example is a stay of execution in order to hear new evidence or arguments that may exonerate a prisoner condemned to death. The present case stands all those centuries of common law on their heads--it issues a stay in order to CAUSE irreparable harm.
Justice Stevens made precisely this point in his written dissent (joined by SOUTER, GINSBURG, and BREYER):
Of course, Stevens's point still stands--preventing the recount ALREADY casts an even bigger cloud over Bush's supposed election--a cloud so big that it now completely envelopes the Supreme Court as well. By Scalia's own words and deeds, the cloud that had previously hung over the election has been vastly expanded in scope--the exact opposite of what he pretends to want.
Lest there be any doubt that Scalia & co. care nothing for the rule of law, he added the following:
The conservative pseudo-principle of "states' rights" says that Federal courts cannot interfere with state law--except to benefit a conservative in trouble. The ONLY thing that permits Scalia to question the recount procedure is this conservative protection exception. An honest proponent of states' rights would simply note that the Supreme Court lacked jurisdiction, since the Florida Supreme Court had simply followed the law passed by the Florida legislature in this regard.
Bush is arguing that the Florida Legislature should have the last word in everything--except when it lets counties decide the standards for determining voter intent. Then, AND ONLY THEN, the Supreme Court should over-rule the Florida Legislature.
And they accuse GORE of trying to make the rules up as he goes along? They accuse the FLORIDA Supreme Court of trying to make the rules up as they go along? This isn't the pot calling the kettle black. This is the black hole calling the universe closed.
There is, however, one way to look at this action which does not involve tearing up eight or ten centuries of Anglo-American common law. One could argue that the only "irreparable harm" that Scalia & his gang are really worried about is the irreparable harm that THEY would suffer if they let Gore register a majority of votes before overturning his election. Scalia is suffering under the delusion--common among banana republicans across the decades and around the world--that if he & his friends don't steal the election in plain sight, then no one will be the wiser. To them, democracy is nothing more than a game of "peek-a-boo!" If they just use a g-string of democracy to hide their private power, then everyone will just roll over & let them do what they will. This is how the schoolyard bullies on the Supreme Court think.
Forget December 7. From now on, December 9 will be remembered as the day that shall live in infamy for all time. We're no longer secretly pretending to be a democracy. From here on, it's official. The Roman emperors would be so proud! Bring on the lions! Who's first on the menu?