Justice Scalia confirmed this with his bizarre defense of his order to stop the recount, in which he gratuitously said, "The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election." It was prudent of Justice Scalia to include the words "what he claims to be," but does anyone really doubt that Scalia, like those Bush supporters who kept angrily braying that Bush had "won," believed that the Texas governor should by rights have already moved into the White House, and Gore's attempts to find out what the vote actually was were damn near treasonous?

This we-already-won mind-set explains why the court signally failed to look at the election as a whole, and craft a remedy that tacitly acknowledged the errors both sides made -- a ruling that would have been as politically wise as the one it issued was divisive and rash.

Courts are not explicitly political institutions, but when dealing with an issue as momentous as the election of a president, it would seem wise for the court to assess the entire context in which a given legal challenge takes place. The Florida election was an equal-opportunity debacle: Both sides acted wrongly and bear some responsibility for the mess. But no one objective could conceivably look at it and claim that the Democrats had overreached so badly that they deserved to be terminated by judicial fiat.

Florida's governor was George W. Bush's brother. Its secretary of state, who never ruled against him, was a high-ranking official in his campaign who hired a private voter-roll cleansing company with Republican ties that disqualified hundreds of legitimate Democratic voters. The Florida GOP illegally completed Republican ballot applications in Martin and Seminole counties while denying Gore campaign workers the same opportunity to correct Democratic ballot applications. It took every opportunity to disqualify improper ballots for Gore, while demonizing Gore for doing the same thing to military overseas ballots. Determined to ensure a Bush victory at all cost, the GOP-controlled Legislature voted to push a slate of Bush electors through -- regardless of what recounts might show. And, of course, the GOP dragged its feet at every turn, resisting recounts and trying to run out the clock.

The Democrats, for their part, lost the moral high ground by failing to call for a statewide manual recount from the beginning. They squandered more capital threatening to sue over a ballot designed by a Democrat. They ignored the obvious injustice of changing the definition of what vote should count in the middle of the process: Palm Beach's recount, in which the standard kept changing, was a travesty. And, like their Republican counterparts, they played hardball with every ballot they could get their hands on.

In light of this situation, a ruling that handed victory to one side and not the other was the last thing, from a political as well as an ethical perspective, the court should have been looking for. And fortunately for the court, a decision to remand back to the Florida Supreme Court would not by any means have ensured a Gore victory -- Bush was actually gaining votes by some accounts -- making it the right thing to do both legally and politically. Yet the court, in thrall to the idea that Bush had already won and, one suspects, secretly accepting the Rush Limbaugh crowd's canard that the hand recounts were not just subject to different standards but to malevolent Democratic manipulation and chad chomping, did not even try. It stopped the counting. It stopped the election. It stopped democracy.

Justice Ginsberg, in her dissent, summed up the case with quiet eloquence. "Ideally, perfection would be the appropriate standard for judging the recount. But we live in an imperfect world, one in which thousands of votes have not been counted. I cannot grant that the recount adopted by the Florida court, flawed as it is, would yield a result less fair or precise than the certification that preceded recount."

Thousands of votes have not been counted. Think about that, whatever your political persuasion is, from time to time during the next four years. Imagine them, gathering dust in a filing cabinet somewhere, each one of them expressing the choice of a person who, when he went to the polling place that Tuesday in November, had every expectation that the United States would do its very best to ensure that whether he was rich or poor, black or white, he would be heard.

The people have not been heard. They will not be heard. And each of those uncounted ballots is a cry of reproach against the act of judicial arrogance that has now forever silenced them.

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