Renata Adler - After the Tall Timber

II.

The trouble with a swamp of a decision is that even to deal with it is to be drawn into it. The four dissents politely and eloquently demolished every element of both the decision and the concurrence, to the degree those elements could be articulated. Almost all subsequent commentary, whether in article or book form, demolished them in more detail. But always in ways that seem contingent. Some distinguished commentators have suggested that, if the Bush presidency turns out well, the decision will be vindicated. Or they have pointed out that when the Supreme Court has made mistakes before, it has with time corrected them. Or even that the real precedent for this judicial aberration was Roe v. Wade , when the Court made a decision that might, they felt, have been better left to Congress or the states. But all of them, I think, understate the gravity of what has happened, and its possible consequences for at least a generation.

To return for a moment to the decision — in particular, to Justice Scalia’s concurrence (in itself unusual) in the Supreme Court’s order, which abruptly halted the manual count by granting Bush’s application for a stay. It is often forgotten that, in addition to Florida’s state courts, lawyers for Bush had already brought their case before three federal courts (the U.S. District Courts of Orlando and Miami, and the U.S. Court of Appeals for the Eleventh Circuit Court in Atlanta), without success. A “stay” is a form of the ancient equitable remedy of injunction. Centuries ago, a petitioner might appeal directly to the king for a writ to “enjoin” his neighbor from doing something so drastic and destructive that it threatened the petitioner with “irreparable harm,” damage, in other words, that could not subsequently be undone or compensated. The very basis of a petition for such a writ was an emergency.

A “stay”—and every application by petitioners Bush and Cheney in the federal courts to stop the manual recount was phrased in terms of “An Emergency Motion” or “An Emergency Application for a Stay”—is a drastic remedy. It is not to be granted unless the petitioner clearly establishes that he will suffer “irreparable injury” if the stay is denied; and that this threatened injury outweighs whatever damage the proposed injunction may cause the opposing party. He must also establish that granting a stay would not be adverse to the public interest.

In his concurrence, Justice Scalia did not trouble for a moment to consider whether the threatened injury to Bush if the counting continued outweighed the damage to Gore if it did not. Scalia went straight to “irreparable harm.” If the manual count continued, he said, it “does in my view threaten irreparable harm to the petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”

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.

Justice Scalia’s choice of words seems derived, perhaps intentionally, from the laws of property: “cloud on title”—with, perhaps, an overtone of libel. As though a vote were a form of speech, unprotected by the First Amendment, and the counting of votes were, in some sense, defamatory and damaging to the candidate’s reputation. But from tort claims to suits in antitrust, legal process virtually consists of this casting of clouds on claims of legitimacy. Perhaps all of them should be halted or enjoined.

Whatever “cloud” Scalia had in mind — and it seems to be emotional (anxiety perhaps, or the state of being miffed) — the “harm” to Bush could not possibly be “irreparable,” since it was entirely within the power of the Court, or the manual count itself, to dispel it. If the count went for Bush, no cloud at all. If it went for Gore, the Court would have time to deem the results, if the Court so found, invalid. If the count went Gore’s way, and the Court found no fault with it, the process would have gone just as the Constitution and our political tradition provided that it should, as though the Court had never entered the process — where it did not, in any event, belong.

Scalia’s argument for the stay obviously did not “clearly establish” any, let alone all four, of the requirements for the remedy. His finding of “irreparable harm” was so obviously unserious that even the per curiam did not bother with it. Here is how, retroactively, the per curiam justified its halting of the count: “Given the Court’s assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order. “

“Given,” “probably being conducted,” “unconstitutional manner”: this is not language on which to base an order for a stay. It is not language on which to base a decision of any kind. The word “probably” alone defeats the argument: the courts have always held that no stay will issue if the harm is “speculative.” And the per curiam babbles vaguely on. The mandate of the Florida Supreme Court “is not well calculated to sustain the confidence that all citizens must have in the outcome of elections”; it “jeopardizes the legislative wish”; it “frustrates a legislative desire”; “a legislative wish … would counsel … against any construction that Congress might deem”—all these hypotheticals, wishes, frustrations, desires; what a “wish … would counsel … against,” what Congress “might deem.” The Court, when it speaks honorably, speaks in straight declaratory sentences. It speaks not of legislative wishes, but of commands; not of what Congress might deem, but of what it has said, enacted, or required.

Here is Scalia, waffling, with a little joke based on Alice: “Count first, and rule upon legality afterwards, is not a recipe for producing elections that have the public acceptance democratic stability requires.” Recipe. The public acceptance democratic stability requires. Well calculated to sustain the confidence that all citizens must have in the outcome. All this is not just arguable, and certainly not before the Court. It is not the Court’s business. 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.” Halt the count, and rule upon legality beforehand, is presumably the “recipe” for producing the kind of elections (those “that have the public acceptance democratic stability requires”) that Scalia has in mind.

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.