George W. Bush spent

Views

George W. Bush spent most of the campaign telling voters and journalists that Antonin Scalia was his favorite Justice on the Supreme Court.

Apparently Scalia feels the same way about George W.!

Talking Points has been bellowing on for several days now about the impropriety of questioning the integrity of the rulings of judges.

Well … that was this morning’s post. Things change!

Let’s look at Antonin Scalia’s highly unusual concurring opinion to the court’s order to suspend vote counting in Florida. After arguing, improbably, that George W. Bush would be irreparably harmed by having undervotes counted, Scalia wrote the following:

Another issue in the case, moreover, is the propriety, indeed the constitutionality, of letting the standard for determination of voters’ intent – dimpled chads, hanging chads, etc. – vary from county to county, as the Florida Supreme Court opinion, as interpreted by the Circuit Court, permits.

How can this be anything but an astonishingly inconsistent (not to say hypocritical) statement? The Florida Supremes explicitly adopted the statutory standard put in place by the Florida legislature (see this earlier post for more details). The whole basis of the US Supreme Court’s earlier ruling was that the state legislature had plenary power to determine the method of the election. Not just the state broadly speaking, but the legislature.

Can they have it both ways? The standard Scalia finds so suspect is the one the legislature put in place. And the court is on record as holding that the legislature has the power to set the standard. Am I missing something here? Or is Scalia?

P.S. Scalia’s argument is bogus on a more mundane factual level. His reasoning would also mean that using different voting technology from county to county is also problematic or, perhaps to his lights, unconstitutional. (Special Talking Points’ shout-out to TPM reader Stephen Schwartz for pointing this out.)

P.P.S. Am I wrong to fear that the five members of the Supreme Court majority have knowingly just prejudged, even settled, the matter by running down the clock?

LIKE US ON FACEBOOK