So, 5 out of 9 decided that there could be no remedy, and W was in.
I don't really want to argue the legal technicalities with a lawyer, but personally I think the SC blew it when they let Scalia loose with the "preserve W's legitimacy" line in the original stay order. It was hard to recover from that. The final ruling, from what I've read, was, er, not exactly clear. My favorite bit:
Among the most baffling aspects of the opinion was its
simultaneous creation of a new equal protection right not to
have ballots counted according to different standards and its
disclaimer that this new constitutional principle would ever
apply in another case. "Our consideration is limited to the
present circumstances, for the problem of equal protection in
election processes generally presents many complexities," the
court said. (from nytimes.com.
Jaundiced as I am about this stuff, I think way too much has been made of the "political impartiality" of the SC anyway. A Supreme Court with Scalia, Thomas, and Rehnquist anchoring one side of the ideological divide, with nobody remotely comparable on the other side, doesn't look too "impartial" going in.
Just as well that they ended it, even if they figured out the "new equal protection right", W still had Jeb, the Florida legislature, and the Congress to back him up, regardless of how the ballots got counted. But maybe if Scalia hadn't been quite so arrogant about what was going to go down, they could have come up with an opinion that might helped things along, in the nature of the title of this thread. That's sort of an "if pigs could fly" point, though.
Cheers, Dan. |
