Ultimately Scalia’s statement doesn’t hold water. Even if Bush v Gore isn’t used for precedent, the same conclusion can be reached by another court. If you created a chemical compound of out elements once, you could do it again assuming the same ingredients, formulas, procedures and external conditions. Having a precedent would minimize the considerations for the external conditions, but the basic substance remains. More or less, you just do it again…with a different set of circumstances and participants.