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Considering that the Justices of the United States Supreme Court expressed such extreme concern over the possibility that the Florida Supreme Court might be creating "new law" subsequent to Election Day in its review of the presidential balloting, it is astounding how much new law the Rehnquist Court itself created in the course of its review.
Many constitutional scholars have already commented on the extraordinarily novel interpretation of Equal Protection principles which appears in the final per curiam opinion ending the 2000 election in favor of George W. Bush.
But the most astounding revision of pre-existing law comes in the Court's penultimate opinion, staying the Florida recount, concerning the standard for the granting of temporary restraining orders.
As Justice Scalia's separate opinion justifying the stay concedes, the historic test for interim injunctive relief requires a consideration of two essential ingredients: probability of ultimate success on the merits and irreparable injury. It is black-letter law that such restraints may be issued only when its denial will lead to injury which is not later repairable and there is a strong probability that the petitioner will ultimately win. Neither standing alone is sufficient -- although it is universally agreed that as the extent of the threatened harm increases, the burden to show likelihood of success diminishes.
Further refinements of the formula include the need to preserve the status quo pending consideration of the merits, and the possibility of competing injuries whether or not relief is granted, which sometimes necessitates a balancing of the equities.
Under any application of the above principles, it becomes clear that the stay issued by a 5-4 vote of the Court on June 9 was a politically partisan decision unjustified by anything contained in Anglo-American jurisprudence dating back to the Middle Ages..
While admittedly determination of the status quo is sometimes in the eye of the beholder, the status quo here was that a vote count was proceeding under an order of the Florida Supreme Court. While further elaboration of equitable doctrine would authorize a stay if continuation of the status quo would jeopardize the efficacy of a final judgment in favor of the applicant, that was not the situation. Whatever the recount in Florida showed, it was always subject to being set aside on final appellate review.
Justice Scalia, aware of all this, invented a justification for the stay based on the possibility that a recounting of the votes would show Gore the victor, thus casting a "cloud upon what [Bush] claims to be the legitimacy of his election."
That assertion can only be read as a declaration that Bush would most certainly prevail -- even though briefs had not been filed and argument not yet held -- since it rests squarely on the assumption that Bush was the next President.
Moreover, it has nothing whatsoever to do with the traditional grounds for equitable relief. The majority appears to have substituted a notion of irreparable embarrassment for one of irreparable injury. Who but a Republican partisan could claim that allowing the votes to be counted could cast more of a cloud on a Bush presidency than an edict prohibiting the counting of the votes! -- even assuming any "cloud" could justify suppression of the vote count. Or as Justice Stevens' dissent noted: "Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election."
Obviously aware of the flimsiness of his justification for the stay order, Scalia further asserts that "it is generally agreed that each manual recount produces a degradation of the ballots which renders a subsequent recount inaccurate." Of course, the only ones who had "agreed" to any such proposition were Bush advocates. There was no empirical evidence to support such a partisan claim.
Finally, Justice Stevens in dissent makes the devastating -- and ultimately proven -- point that any balancing of equities would show that the only irreparable injury threatened was that caused by the stay order "because of the risk that the entry of the stay would be tantamount to a decision on the merits in favor of [Bush]." Stevens' prescience was borne out by the majority's determination 4 days later that it was now too late to complete the aborted recount.
In a few weeks I will be once again teaching my first-year civil procedure students the criteria for issuing restraining orders. Do I tell them the Supreme Court has, without acknowledging it, changed the centuries-old rules, and that they should just rip out that section from their casebooks? Or should I just repeat my annual admonition that "the Supreme Court is not final because it is always right; it is always right because it is final."
