Justice Antonin Scalia, contending that all the manual recounts being performed in Florida's counties were illegitimate, urged his colleagues to grant the stay immediately.

[1] Instead, the majority held that no alternative method could be established within the discretionary December 12 "safe harbor" deadline set by Title 3 of the United States Code (3 U.S.C.

The court also ruled that the secretary of state, after "considering all attendant facts and circumstances", had discretion to include any late amended returns in the statewide certification.

According to Scalia, It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success.

The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.

According to Stevens, To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the Court throughout its history.

[23] Because of the case's extraordinary nature and urgency, the U.S. Supreme Court issued its opinion in Bush v. Gore on December 12, a day after hearing oral argument.

[33] Gore argued that Article II presupposes judicial review and interpretation of state statutes, and that the Florida Supreme Court did nothing more than exercise the routine principles of statutory construction to reach its decision.

"[44] Later interviews by Vanity Fair indicated that Breyer and Souter were trying to appeal to Kennedy to join them on the remedy, rather than agreeing that an equal protection violation had occurred.

[1] Law clerks who worked for Kennedy and O'Connor at the time later said they believed the justices settled on equal protection as grounds for their decision, rather than Article II, because they thought it would seem fairer.

"[41] Breyer's dissent stated, "By halting the manual recount, and thus ensuring that uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm.

But Souter and Breyer favored remanding the case to the Florida Supreme Court for the purpose of crafting specific guidelines for how to count disputed ballots, in contrast to the majority's decision to halt the recount altogether.

Stevens's dissent (joined by Breyer and Ginsburg) concluded as follows:[49] What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed.

[55] The most closely decided aspect of the case was the key question of what remedy the Court should order, in view of an Equal Protection Clause violation.

In this case, that comprehensive reading required that there be time for an elections contest pursuant to section 102.168, which all parties had agreed was a necessary component of the statutory scheme and to accommodate the outside deadline set forth in 3 U.S.C.

Louise Weinberg argues that even giving the U.S. Supreme Court the benefit of the doubt that it acted appropriately in intervening in Florida state law, its actions should be deemed unconstitutional because its intervention was not coupled with any kind of remedy aimed at determining the election's actual outcome.

[63] Lund states that, as a practical matter, the Florida Supreme Court was unlikely to have actually been capable of conducting and completing a new constitutionally valid recount by the December 18 deadline for the meeting of the Electoral College.

But critics interpreted the sentence as stating that the case did not set precedent in any way and could not be used to justify any future court decision, and some suggested that this was evidence the majority realized its holding was untenable.

At an election night party, O'Connor became upset when it was reported that Gore had won Florida, her husband explaining that they would have to wait another four years before retiring to Arizona.

[1] The liberal law clerks noted that Scalia later had begun campaigning for the stay of the Florida court's December 8 recount order before the Court had received Gore's response to Bush's request, and was so incensed at Stevens's dissent in the matter of the stay and grant of certiorari that he requested the release of opinions be delayed so that he could amend his opinion to include a response to Stevens.

Later, court personnel, as well as Ron Klain, speculated that there was an unspoken understanding that the judges on the winning side would not retire until after the next election, as a way of preserving some sense of fairness.

[83][64] The five conservative justices decided to involve the federal judiciary in a matter that could have been left to the states, while also expanding previous U.S. Supreme Court interpretations of the Equal Protection Clause.

Meanwhile, the liberal justices all supported leaving the matter in the hands of a state and also sometimes advocated in favor of a narrower reading of existing Equal Protection Clause precedents.

Based on the review, the media group concluded that if the disputes over the validity of all the ballots in question had been consistently resolved and any uniform standard applied, the electoral result would have been reversed and Gore would have won by 60 to 171 votes.

The Washington Post qualified the tallies conducted by the NORC consortium with the statement: "But no study of this type can accurately recreate Election Day 2000 or predict what might have emerged from individual battles over more than 6 million votes in Florida's 67 counties.

But a recount could have restored the votes of thousands of older voters whose dimpled and double-voted ballots were indecipherable to machines but would have been clear in a ballot-by-ballot review.

"[87] Several articles have characterized the decision as damaging the reputation of the court, increasing the view of judges as partisan, and decreasing Americans' trust in the integrity of elections, an outcome Stevens predicted in his dissent.

[94] Although stay orders normally do not include justification, Scalia concurred to express some brief reasoning to justify it, saying that one potential irreparable harm was that an invalid recount might undermine the legitimacy of Bush's election (presumably if, for example, it were to find that Gore should have won).

According to Stone: No one familiar with the jurisprudence of Justices Rehnquist, Scalia, and Thomas could possibly have imagined that they would vote to invalidate the Florida recount process on the basis of their own well-developed and oft-invoked approach to the Equal Protection Clause.

Zelden concludes that the Court's failure to spotlight this critical flaw in American electoral democracy made a replay of Bush v. Gore more likely, not less likely, either in Florida or elsewhere.