The Supreme Court That Can Say "No"

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Dahlia Lithwick over at Slate points out that, even if anomalies with Tuesday's presidential election send its final solution all the way to the Supreme Court, the Court can–and should–just refuse to take it.

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  1. If they bow out and allow a Kerry win, fine. Refs do make-up calls all the time to right a previous wrong.

    However, if they bow out and Bush wins, the Supreme’s credibility will be demolished. I don’t think they’ll do that.

  2. As far as the John Marshall quote goes, the courts should have the power to enforce their decisions. Most of those decisions are about curtailing the power of the executive, or ordering it to do things it didn’t want to do. What sense does it make, then, for the authority to enforce (or not enforce) the courts’ decisions to lie with that same executive?

    The federal marshalls should work for the judicial branch, not Justice.

  3. Lithwick also fails to seriously address the circuit split issue. Quite a few of the potential problems (like polling place challenges) could happen in multiple circuits. If the Supremes refuse to resolve a circuit split on something of this magnitude, that would also be a severe blow to their credibility, regardless of who the final winner is.

  4. If the margins are decisive then all this will be moot.

    If the margins aren’t decisive then it will be appealed to the Supremes. And even though I would respect them for refusing to hear the appeal, the fact is that half of the country will interpret that refusal as a ruling in favor of the other guy. I’m not saying they should take the case on those grounds, I’m just saying that if the appeal reaches their doorstep the damage to their reputation will already be sealed, sadly. A lot of people, however rightly or wrongly, interpret a refusal to intervene as a de facto intervention in its own right.

    Here’s hoping for a clean and decisive outcome. I don’t necessarily mean huge margin (that’s probably too much to hope for), but 2% in every state, one way or the other, would all but guarantee an undisputed outcome.

  5. They should appeal it the UN World Court!

  6. I agree with thoreau, the best thing we can possibly hope for is a clear winner.

    I don’t like the Supreme Court deciding elections. I’d like it even less if an army of lawyers becomes the best method of winning an election. All these threats of litigation from either side just don’t sit well with me.

  7. While some of the people who are upset by the Bush v. Gore ruling would be upset by any scenario that gave the election to Bush, there is a whole crop of us who would have taken a “we’ll get ’em next time” attitude if the decision was backed up by reasoning that passed the legal laugh test.

    First of all, a judge can’t just declare that his ruling won’t serve as a precedent. Cripes, can anyone track down another decision in which a court tried to pull that off? If the reasoning isn’t sound enough to decide future cases, why is it sound enough to decide this one?

    Second, the temporary injunction: TIs are issued by a court when it takes a case, and there are two findings which must be met to justify them. First, waiting until the final ruling for relief must be likely to result in serious damage. Second, the court must find that the applicant is very likely to prevail.

    So what was the serious damage that might occur if the recount wasn’t stopped? The court found that a decision that awarded Florida’s EVs to the candidate with the lower vote total in the recount would result in people “casting aspersions” on the legitimacy of George Bush’s presidency. That’s not significant harm! And even if it were, their injunction did nothing to stop that. As for the second part, how could they find that Bush was very likely to prevail, when the final count was 5/4? Was the argument of the Bush camp (the one that led to a finding which is so weak that it shouldn’t be used as a precedent) really so strong that the decision was obvious on the merits? Or does it have something to do with the partisan makeup of the court?

    At the heart of the ruling was the finding that someone in Brevard County would have his rights infringed on if the votes in Miama-Dade were tallied more accurately – not more accurately than in Brevard County, mind you, just more accurately than they had been tallied in the initial count. Even if there was no indication tht there were any inaccuracies in the count for Brevard County. I had no idea that people in wealthy suburban counties had a right to see their urban counterparts’ votes miscounted, but apparently I missed class that day.

    Finally, Scalia’s son was one of the plaintiff’s lawyers! And people wonder why the impartiality of the court is called into question.

    I’m a Massachusetts liberal, so I’m pretty used to losing presidential elections. But there’s a difference between losing fair and square, and losing because the other guy had the ref in his pocket. This ruling sucked. The court isn’t in disrepute because it ruled on the case. It’s not even in disrepute because of who won. This court is going to go down as one of the most corrupt in American history because of the transparently bias of the majority in picking their preferred candidate.

  8. zzzzzzzzzz

  9. “First of all, a judge can’t just declare that his ruling won’t serve as a precedent.”

    Actually, they can. See, e.g., Wal-Mart Stores, Inc. v. City of Cheyenne 120 F.3d 271 n.* (10th Cir. 1997):

    “This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.”

  10. SR,

    Allow me to amend the statement to, “The Supreme M***** F***ing Court of the United States can’t issue a statement that its ruling shouldn’t be used as a precedent, and expect it to stick.”

  11. joe, that’s more like it.

  12. OH yeah like the SCOTUS would ever pass up an oppertunity to wield power. The mother fuckers can’t even read english but they know better than anyone about everything.

  13. This is a tough thing. To say ‘the supreme court shouldn’t take it’ is too broad. Apologies, I haven’t read the thrust of the argument. But the supreme court is SUPPOSED to take any issue which challenges constitutionality. Now, one could argue that if there’s only a tenuous issue challenging constitutionality of an issue over the election, then they may avoid it to save the credibility of the court and the elections. But what’s the Supreme Court supposed to do if a real constitutional issue arises in the wake of the election?

    Paul

  14. Just like in the old Smothers Brothers routine where Dick admonishes Tom, when one folk singer says, “Take it!” the other folk singer is obligated to take it, The Supreme court can act like a recalcitrant Tommy Smothers and not take it if they don’t want to.

    “My Supreme court judge is a cotten pickin, election riggin autocrat, what do you think about that? He wears a cotten picken election riggin raincoat, he wears a cotten picken election riggin hat….”

  15. Well, Warren pretty much said what I was going to say. Sure they CAN. Sure they SHOULD. Are they GOING TO? Hell no! I once wrote up a brief explanation of how to calculate how the SC will decide on any given issue; I can’t find it right now, but the first consideration is: “Which choice will give the Supreme Court the most power?”

  16. Paul,

    Sorry, you’re wrong. The Supreme Court can indeed decide it just doesn’t want to take nearly any case, especially this sort. (I’m not sure about cases where the Supremes have original jurisdiction, e.g. cases involving ambassadors; see Art. III, Sect. 2.) The Court has essentially complete autonomy in deciding its docket; it rejects appeals of constitutional issues every day.

    One of the lovely things about the Constitution is that it contemplates just this situation. If the election doesn’t produce a clear winner in the Electoral College, the House gets to decide (one vote per state, etc.). I wished four years ago that the Court would wash its hands of the matter, but noooo (pace Steve Martin).

  17. It wouldn’t have mattered in the 2000 election if the Supreme Court HAD stayed out of it – Bush would stil have won.

    The Constitution specifies that the state legislatures have the power to select the electors that are sent to the electoral college.
    The Florida legislature was controlled by the Republicans.

    If the Florida Suprement Court had been allowed by the US Supreme Court to keep on gyrating about the recounts, the Florida legislature would have simply thumbed it’s nose at the court and picked electors who would have voted for Bush no matter what the court decided. And that would have been that. Bush wins.

  18. “Sorry, you’re wrong. The Supreme Court can indeed decide it just doesn’t want to take nearly any case, especially this sort. (I’m not sure about cases where the Supremes have original jurisdiction, e.g. cases involving ambassadors; see Art. III, Sect. 2.) The Court has essentially complete autonomy in deciding its docket; it rejects appeals of constitutional issues every day.”

    Well the court doesn’t actually have “complete” autonomy. That same Article III, Sect. 2. specifies that the Congress can limit the appellate jurisdiction of the Supreme Court. Congress could deny the court authority to hear some cases that it actually wanted to hear.

  19. Gilbert:

    Congress can limit the appellate jurisdiction of the Supreme Court

    Yes, but it hasn’t done so. If it does, then the Court will no longer have “essentially complete autonomy.” There’s a move afoot to strip the Court of authority to review decisions about the Pledge of Allegiance.

    It wouldn’t have mattered in the 2000 election if the Supreme Court HAD stayed out of it – Bush would stil have won.

    I know. I wish the Court hadn’t established this precedent, and entangled its authority with Bush’s victory. My concern was not that Bush would have lost anyway — he wouldn’t have.

  20. I know, Gil. But there’s a difference between losing a fair fight, and having the other guy’s buddies jump in as soon as he starts to lose. But at least in that scenario, you get the moral victory of everyone having to face the fact that you were the better man, and he needed to get his ass bailed out to win. Even worse is when the guy manages to cheat in a way that still allows him to claim he won fair and square.

    If the state leg. were to jump in, it would have been a public admission that Bush couldn’t win the election without overt partisan intervention. What really sticks in my craw is that Bush gets to claim he won the vote, when he didn’t.

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