Boies tries to justify using "standards" over "rules." He argues that every facet of the law—juries, criminal law, local government law—is fraught with a subjective "intent" component. But Souter, speaking for "Breyer and a lot of us," explains that the lack of objective rules from county to county is troubling. And it looks suddenly like it could be a 7-2 decision on the Equal Protection claim.
So, we're at the "too late" part. Souter concedes that even if the court could fashion an objective chad-standard, "we can't send this back for more fact-finding." Boies tries to offer him a fair standard. "Count every vote," grins Scalia.
Stevens, who looks like he's been drinking what Ginsburg has been drinking and sounds like he wants to be doing Boies' job more than Boies does, tells him to explain to the court that uniformity comes with a judge reviewing all the results. Boies insists that it was simply not difficult for Palm Beach County to discern "the clear intent of the voters" on hundreds of ballots. He insists that Florida statutes and case law provide that voter intent matters. But in failing to give them a bright-line rule with which to measure voter intent, he is not winning justices or influencing people. And when Kennedy says the words "very troubled" again and Rehnquist reminds him that tomorrow is the deadline, Boies starts looking about ready to call his bookie too.
Boies finishes with the argument that the Equal Protection violation inherent in having some counties with crappy voting mechanisms is far more egregious than the Equal Protection violation of counting chad differently. Too little. Too late.
One of the great mysteries of my job is the dear friendship that has sprung up between Justices Ginsburg and Scalia. Until today, when it occurs to me that they each represent one divine quality. Ginsburg is a merciful god. Scalia is just. The idea was supposed to be that combining these orientations might create one quasi-divine federal being. Except combining the two qualities is virtually impossible. Ask Job. So Voltaire once wrote that if God didn't exist, it would be necessary for us to invent him. We did, and we called it the U.S. Supreme Court. But the court, like us, proved to be human in the end.
This is not a constitutional crisis. It's a theological one.
Click here to listen to audio of the oral argument.