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Reply #113: consideration is always limited to 'cases and controversies" [View All]

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Land Shark Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Dec-05-08 01:27 PM
Response to Reply #102
113. consideration is always limited to 'cases and controversies"
Agreed those are weasel words, but the conventional wisdom (not your words above) that Bush v. Gore is "not a precedent" is entirely an urban legend. It was cited in two 6th Circuit published cases last week ALONE. Moreover, and I'm reacting to the conventional wisdom more than the above post, if Bush v. Gore were NOT a precedent for any reason other than being considered VOID, then that would in fact be far worse. It would only mean that if a case came up with the same particular facts, not even then would the Supreme Court itself be bound to decide the case similarly.

THus, if Bush v. Gore is "not a precedent" that's the worst possible thing, because federal courts clearly apply the holdings of it, but if it's not a precedent than the supreme court's freedom to decide presidencies is unrestrained even if a case on point with Bush v. Gore comes up. They could, with an identical case, accept cert (to clarify the unclear status of Bush v. Gore and/or conflicts in the circuits on it) and then decide the identical case the opposite way, without even "reversing" themselves because the Bush v. Gore case is "not a precedent".

Like you say, Bush v. Gore is a fact. It decided a presidency. They don't seem to have suffered great permanent damage to their political capital given the aftermath -- they've decided many controversial cases since then. Not that I recommend it, but they decided Bush v. Gore without a single broken window in the land that I know of.

Some people say it couldn't happen again because there would be an uprising. Perhaps. but there wasn't one last time. So the Supreme Court might well think they could manage it again. I grant that it would be tougher sledding this time. That's why I see that if they get involved, they most likely defer to congress in their decision under political question grounds.
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