Today in Supreme Court History: December 8, 1902

12/8/1902: Justice Oliver Wendell Holmes takes the oath.

Justice Oliver Wendell Holmes

Comments

[JoeFromtheBronx]

I'll cite another OTD. One summary:

On November 26, 2000, Florida Secretary of State Katherine Harris certified that Bush had won the election by a 537-vote margin. Gore then sued Harris because all of the recounts had not been completed when she certified the results. On December 8, 2000, the Florida Supreme Court sided with Gore, ordering that all statewide “undervote” ballots, or punch-card ballots that had been cast but not registered because of a problem called a “hanging chad,” needed to be recounted.

https://constitutioncenter.org/blog/on-this-day-bush-v-gore-anniversary

The Supreme Court (5-4) stayed the recount the next day. Perhaps paraphrasing the knight in an Indiana Jones film, though JPS was a bit younger, Justice Stevens noted "The majority has acted unwisely."

Yes. Let things play out. The end result very well could have been the same winner. But the correct process would have been useful.

https://www.presidency.ucsb.edu/sites/default/files/docs/12-09_ussupreme_staygranted_dissent.pdf

[Commenter_XY]

I remember that time well. Thank God we're not dealing with a recount situation this time. Can you imagine what would happen to the country with a repeat of the 2000 election? Makes me shudder to even think about it.

[Dan Schiavetta]

"Can you imagine what would happen to the country with a repeat of the 2000 election?"

What happened after the 2020 election was worse, if you haven't forgotten. And had more lasting and dire consequences.

Think how painful it must have been for Gore to make that concession speech, and then a few weeks later as V.P. step to the front of the Senate and count the electoral votes and announce GWB as the winner. Trump did not (and does not) have that kind of fortitude.

[AmosArch]

What fortitude? He literally dragged it out as long as he could including a takebacksie concession. The rewriting of history to cast Gore as some noble commander who immediately falls on his sword for the good of the nation without a single thought of ambition is something else.

[Dan Schiavetta]

He was entitled to a recount and it was Bush who went running to the federal court which, to most people's surprise, decided it had jurisdiction. That's what dragged it out.

[AmosArch]

Bush was entitled to have the count certified by the deadline. Gore didn't run to the Supreme Court because he knew what they would say but he could have ended things at any time. Especially after the first recount. But he pressed on. Only in counties where he had an advantage of course.

[Dan Schiavetta]

The deadline was meaningless because the Court had already stopped the count. And you can't say Gore was wrong in asking for recounts when he ended up being declared the loser by only 537 votes.

[Krayt]

It depends what you mean by "the correct process". You can't change the rules to make your guy win.

Because of the butterfly ballot fiasco, where Pat Buchanan got something like 18,000 excess votes in one county compared to all the other ones, Gore probably should have won. All other efforts, tailored at altering a few dozen here and there, to make up 300 to 500 difference statewide, became jokes.

You're not fighting for anything valid or honest, just a power broker win.

Even recounting a county or four may be statistically valid for that county, but is invalid for the state as a whole.

Imagine a county heavily Gore, with 100,000 votes, 70/30. So Gore gets 70,000, Bush 30,000. You recount it per request.

It's a curious feature of recounts that they find more valid votes usually. So say they find 200 more, or 0.2%. Of those 200, you'd expect 70% to be Gore, and so on, just like the larger vote.

So Gore gets 140 more, Bush 60 more.

But it's not the county that matters, but statewide totals. So statewide, Gore gets 80 more votes closer to Bush, catching up a bit. In a close race of 300 different, this can make all the difference if you recount several counties heavily leaning your candidate already.

Most did not know this emergent effect, but the power brokers sure as hell did.

Hence, does a wide-eyed innocent claim to be trying to get a more statistically accurate count in a county make the state total statistically inaccurate. Because of that curious feature more votes are usually found on a recount, the only statistically valid process would be a full statewide recount. Which could not be forced back then because then that would be changing the rules to make a different guy win (or not lose.)

In short, there's nothing you can do to fix the Buchanan issue, you can't reassign, statistically correct, or declare it fubar and revote. Nor could you change the rules after the election which allowed requesting up to 4 county recounts, or whatever the rule set before the election was.

Both suffer from trying th change the rules to make your guy win, and the former touches on flat out banana republic status, with government declaring and reassigning votes to change the result.

Of course, the time to address this is now, before an election. I won't be holding my breath. I remember mathematicians pleading with the State of New Jersey to not implement even/odd license plate schemes for filling one's tank during a (fake) gas shortage, because it would make lines worse*. But stupid is as stupid does, and they did it anyway, so as to look like they were doing something.

* People who fill every four days, or three, now fill every two, lest they risk going dry waiting for day 4. And so on for all other pairs of days.

[JoeFromtheBronx]

The "correct process" covers everything, including letting the state courts handle state legal matters.

[The Margrave of Azilia]

"letting the state courts handle state legal matters"

Racism!

[JoeFromtheBronx]

If there were constitutional issues involving race discrimination and so on, it would not be purely a state legal matter.

[not guilty]

George W. Bush likely became president because thousands of Jews in Palm Beach County mistakenly voted for a Nazi.

[Mr. Bumble]

Hit the bottle early today I see.

[SRG2]

IIRC SCOTUS said that their decision in Bush v Gore created no precedent and was good only for that case. Might as well have said, we're ruling in favour of Bush because that's who we want to win.

[AmosArch]

As opposed to reinterpreting ballots over and over again until Gore won.

[Noscitur a sociis]

You DNRC (although certainly it’ not your fault gif e how often that canard is repeated by liberal election denialists).

[Mr. Bumble]

Yes, the old count till we find enough votes.

[Dr. Ed 2]

Perfected in 2020.

When you realize that Heels Up got at least a few million fraudulent votes, you gotta wonder how big Trump's landslide really would be without them counted.

[SRG2]

When you realize that Heels Up got at least a few million fraudulent votes, you gotta wonder how big Trump's landslide would be

No evidence for all these fraudulent votes, nor did Trump win by a landslide

[Dr. Ed 2]

Wasn't he a "Junior"?

He was wounded in the Civil War, and I argue that shaped him.

[Noscitur a sociis]

Many people forget!

[Dan Schiavetta]

He wrote that poem in favor of preserving "Old Ironsides".

He was, I think, more interesting than his son. Holmes Sr. prefigured Darwin on evolution and Freud on the unconscious.

[The Margrave of Azilia]

Holmes was a lawyer-poet, just like his dad (of the same name) was a physician-poet. The difference being that I don't think dad used his poetry to promote bad medicine.

Here is one of lawyer-poet-Holmes' gems, dissenting in the Communist-speech case of Gitlow v. New York:

"If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way."

https://www.law.cornell.edu/supremecourt/text/268/652

Even those who like free speech are presumably supportive of such a right because it's the *antithesis* of Communism, because they have the Millsian hope that political truths (with emphasis on Truth) will be established by free debate, and because (as liberalism seems to acknowledge) political truth means rejecting communism. But Holmes was a bad-ass positivist seeking to epatee the heck out of the bourgeoisie (just like a true poet would!).

Then there's the head-in-the-clouds dissent which Holmes fans are (I hope) embarrassed by, where the lawyer-poet would have upheld a law to enforcing servitude for poor Southern blacks under the guise of a labor regulation. "The Thirteenth Amendment does not outlaw contracts for labor. That would be at least as great a misfortune for the laborer as for the man that employed him."

https://supreme.justia.com/cases/federal/us/219/219/

[Dan Schiavetta]

Chew Heong v. United States, 112 U.S. 536 (decided December 8, 1884): Chinese Exclusion Act (requiring certificate for reentry) did not apply to those who were already in the country, left then returned

Shapiro v. McManus, 577 U.S. 39 (decided December 8, 2015): Constitutional challenges to Congressional reapportionments must be referred to three-judge panel (appeal from which is one of the only remaining direct, non-discretionary appeal routes to the Supreme Court, and I think the only one directly from the trial level) (trial court had treated referral as discretionary)

Mohawk Industries v. Carpenter, 558 U.S. 100 (decided December 8, 2009): order denying claim of attorney-client privilege is not immediately appealable (I suppose the only thing to do if disclosure would put your client in some kind of outside jeopardy is to flout the order and get cited for contempt, but that order’s not appealable either)

[not guilty]

In Carpenter the Court held that a pretrial ruling denying a claim of attorney-client privilege is not immediately appealable as of right as a collateral order. The Court, however, did identify other vehicles which are potentially available for pretrial review, such as certification of the question for interlocutory appeal by the District Court pursuant to 28 U.S.C. § 1292(b) and petitioning the Court of Appeals for a writ of mandamus. 558 U.S. at 111. Also, a criminal contempt order for non-compliance would be immediately appealable as of right.

[Dan Schiavetta]

Thanks! Will rephrase it next time around.

[Commenter_XY]

https://legalinsurrection.com/2024/12/california-bar-may-consider-campus-protests-in-moral-character-review-for-licensing-lawyers/

This will be interesting to watch.

[Dan Schiavetta]

Reminds me of that movie, "Report to the Commissioner", with Michael Moriarty.

[The Margrave of Azilia]

I suppose the case-by-case review will end up concluding: "It's one thing to block other students on campus, but disrupting the dean at his home is wrong."

[not guilty]

Case by case review of a bar applicant's protest activity is probably appropriate, especially if the protest activity involved unlawful conduct. For example, participation in the breach of the Capitol on January 6, 2021 should reflect badly on an applicant's fitness for admission to practice.

There are constitutional limits on disqualification pursuant to such a character and fitness inquiry. Arrests not resulting in conviction or past membership in a disfavored political party should not be disqualifying. See, Schware v. Board of Bar Examiners, 353 U.S. 232, 241-246 (1957). And viewpoint discrimination would raise First Amendment concerns.

[David Nieporent]

And viewpoint discrimination would raise First Amendment concerns.

But see Hale v. Committee on Character and Fitness for the State of Illinois, 335 F.3d 678 (7th Cir. 2003).