Judicial Review - Problem or symptom?

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Is the self-appointed power of judicial review by the US Supreme Court a serious problem in the USA, or is it only a symptom of a problem?

Judicial review appears prima facie to be a lead-in to totalitarian impulses by a small, unelected group of 'seers', if you will - a supposedly wise counsel who not only know what's best for the country, by interpreting in an almost mystical fashion our Constitution and the intent therein of the small group of Englishmen who wrote it, but who are also willing to impose a neutral Solomonic judgment on a variety of issues that would be incomprehensible to those constitutional creators.

The fact that we have and have had Supreme Court justices of all political persuasions who have been neither wise nor neutral only adds to this feeling that leaving such weighty pronunciamentos in their hands is not only _not_ in the spirit of American democracy, but possibly dangerous to our democracy.

But is this really the problem, or is it simply yet another simplistic sleight-of-hand by one or more power elites in this great nation to deflect angst and anger into beating up another straw man, and one who absorbs any attacks with stonyhearted indifference at that, being shielded from such attacks by the very nature of their appointment (as unelected, 'for life' officials)?

Generally, when the US Supreme Court issues a ruling against some legislation or other legal construct (Bush v. Gore being a glaring exception, and an egregious error both in judgment and of partisanship), what they are supposed to be stating is that the constructors of that legislation, or those who apply that legislation, have not met the standards set out by the US Constitution. It is then up to LEGISLATORS to go back and actually _do_ the work that the citizenry hires them for, which is to craft whatever legislation is necessary for the good of the people (the definition of "for the good of the people" is a subject for another discussion). If legislators would rather default on their responsibilities, and blame the Supreme Court for the legislatures' incompetence or inactivity, than it is we the people who are the fools for not only believing them, but for not loudly decrying such duplicity. There is nothing the Supreme Court can do which is irrevocable and irremediable, if legislatures and the people who employ them have the will to 'overturn' a Supreme Court decision through the legislative process, up to and including Constitutional Amendment. The US Constitution is an extremely important document, but it is not a religiously sacred one, as has been shown 27 times to date, with even further Amendments than that having been proposed.

There is nothing mystical about either the Supreme Court or its constituent members, who show themselves to be subject to human flaws like vanity, hubris, and selfishness _at least_ as often as the rest of us. And shame on legislators who blame the Supreme Court for their own unwillingness to take action to help create a constitutionally more perfect union.

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Quote Original Ray:

Is the self-appointed power of judicial review by the US Supreme Court a serious problem in the USA, or is it only a symptom of a problem?

Who claims this is a Self-Appointed Power?

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Quote Capital:
Quote Original Ray:

Is the self-appointed power of judicial review by the US Supreme Court a serious problem in the USA, or is it only a symptom of a problem?

Who claims this is a Self-Appointed Power?

I second that question. Where did that come from or am I misunderstanding what you are trying to say. Nobody in the supreme court is self appointed.

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Judicial Review is a self-appointed power of the Supreme Court. See Marbury v. Madison. Don't you guys actually _listen_ to Mr. Hartmann's show? He references this almost daily.

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Quote Original Ray:

Judicial Review is a self-appointed power of the Supreme Court. See Marbury v. Madison. Don't you guys actually _listen_ to Mr. Hartmann's show? He references this almost daily.

Got ya. I read right over that. My bad. I was thinking judges and not judicial review.

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Quote Original Ray:

Judicial Review is a self-appointed power of the Supreme Court. See Marbury v. Madison. Don't you guys actually _listen_ to Mr. Hartmann's show? He references this almost daily.

He talks about it ad nauseum. Doesn't make him right. If he keeps at it, He's going to have equal stature with 9/11 conspiracist and Birthers.

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He talks about it ad nauseum. Doesn't make him right.

It doesn't make him wrong either.

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Quote leontrollski:

It doesn't make him wrong either.

Kind of does.

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I disagree with Thom on this issue. The power is implied in the idea of having a Supreme Court that acts as the final court.

However, Thom is right, no where in the USCon is this power given to the SCOTUS. The power of judicial review was discussed at the Constitutional Convention, but no such language granting that power was included in the final document.

So, just as we have no constitutional power to conduct foreign wars, we also have no SCOTUS power to strike down law. Of course, I won't hold my breath to see all US troops to get brought back to within our national borders, nor should we expect any sort of judicial restraint from Scalia.

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Quote Phaedrus76:

However, Thom is right, no where in the USCon is this power given to the SCOTUS. The power of judicial review was discussed at the Constitutional Convention, but no such language granting that power was included in the final document.

"The judicial Power of the United States, shall be vested in one supreme Court"

Seems pretty Crystal Clear from where I sit.

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Unfortunately I'm in the position of disagreeing with Capital, whom I usually agree with, and agreeing with Thom whom I usually disagree with. :-)

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Quote mjolnir:

Unfortunately I'm in the position of disagreeing with Capital, whom I usually agree with, and agreeing with Thom whom I usually disagree with. :-)

Disagreeing is good, May I ask why?

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Don't get me wrong. I'm not saying I have a better system. I suppose it's like baseball, in the course of a season there will be "good" calls and "bad" calls the veracity of most of them depending on your view point.

History is of course written by the victorious or in this case maybe by the lawyers. I know that growing up I never saw the fait accompli of Marbury vs. Madison described as anything but the natural order of events with the possible occasional disclaimer to the alarm expressed by Jefferson.

I think the debate was much more vigorous than most of us realize. I just can't believe that the average man of that time would have held the view that the people he voted for: the man who spent his levied taxes, the man who represented his State, and the man who led his Nation could all, collectively, be overruled by an unelected body of men.

I vote we put all of them on horseback and make them ride circuit again, until that is they make a decision I favor. :-)

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The judicial power is not the legislative power. The point Thom starts from and mjolnir agrees with is that the elected should trump the unelected in a showdown. It is a big problem when we try to balance powers and determine what turf is whose. The idea that we are to be a nation of laws rather than "men" is what makes "the Constitution" such an emotional issue. I think we are talking about things that do not yield easily to definition and literalism. How we manage the tensions and inherent ambiguities, or "the Spirit of the Law," is our constant democratic duty.

If we must have the three branches of government "checking and balancing" one another, the role of the Court does need to be checked and balanced more than it has become. But, the President also needs to be less an Emperor and Congress needs to represent the people instead of being bought and sold. I would have the Court vested with the protection of citizens from abuse in the lower courts as well as from actions of the other two branches that violate our civil and human rights.

Protection of personal economic stakes rather than corporate would also be an appropriate protection against abuse of legislative and executive behavior; but private ownership of public institutions and stocks would not justify abuse of other individuals. The emphasis is to keep citizens free. The Court would also regulate the courts as the highest court of appeal.

The vote would be sacrosanct and protected from the clear abuse of money and corrupt practices. Rights of conscience and full access to the common rights and privileges of citizenship assured to prevent the enactment of prejudices in law or administration. How much "judicial review" is this?

The real problem is the loss of the legislative voice to true representative democracy. This is why my grand reform would be to chuck this flawed design and go parliament. I think we can make our case better in free local elections than in the hope that macro elections of temporary kings or the appointment of a 'wizened council of elders' will keep democracy in check and balance. If we went that way, there would be no "king" and the Court would just be the last court of appeal. We would not need lengthy election campaigns and could ban ads during the relatively brief period of the actual elections.

I do not fear democracy even if I don't believe the will of the people is always right. I think the means of checking and balancing those errors in public opinion and "will" are in the people rather than in this superstructure. I do hold with "the rule of law" in the sense of a democratic contract for equality as citizens. This does not require economic equality, but it does mean that economic difference cannot be allowed to encroach upon civic and human equality as citizens and humans. We get to work out what that means together in "democracy."

I don't believe states, cities or regions have the right to impose prejudice and dogma. "State's Rights" have tended to be about State's Wrongs. Religious wars have to be seen as an offense against democracy as well as a lack of faith in the fundamental morality of "liberty and justice for all." Were we focussed on how to have democracy, we would not confuse freedom with predation.

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I looked at Wikipedia for "Separation Of Powers". Found this interesting.

Checks and balances

To prevent one branch from becoming supreme, protect the "opulent minority" from the majority, and to induce the branches to cooperate, government systems that employ a separation of powers need a way to balance each of the branches. Typically this was accomplished through a system of "checks and balances", the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Checks and balances allow for a system based regulation that allows one branch to limit another, such as the power of Congress to alter the composition and jurisdiction of the federal courts.

Legislative (Congress)Executive (President)Judicial (Supreme Court)

  • Is the commander-in-chief of the armed forces
  • Executes the instructions of Congress.
  • May veto bills passed by Congress (but the veto may be overridden by a two-thirds majority of both houses)
  • Executes the spending authorized by Congress.
  • Declares states of emergency and publishes regulations and executive orders.
  • Makes executive agreements (does not require ratification) and signs treaties (ratification requiring by two-thirds of the Senate)
  • Makes appointments to the federal judiciary, federal executive departments, and other posts with the advice and consent of the Senate. Has power to maketemporary appointment during the recess of the Senate
  • Has the power to grant "reprieves and pardons for offenses against the United States, except in cases of impeachment."
  • Determines which laws Congress intended to apply to any given case
  • Exercises judicial review, reviewing the constitutionality of laws
  • Determines how Congress meant the law to apply to disputes
  • Determines how a law acts to determine the disposition of prisoners
  • Determines how a law acts to compel testimony and the production of evidence
  • Determines how laws should be interpreted to assure uniform policies in a top-down fashion via the appeals process, but gives discretion in individual cases to low-level judges. The amount of discretion depends upon the standard of review, determined by the type of case in question.
  • Federal judges serve for life
The Congress[quote]Defines by law the jurisdiction of the federal judiciary in cases not specified by the Constitution[/quote]Has some implications, I would think.

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Quote DRC:

The judicial power is not the legislative power.

Nor was it EVER implied to be. What it does imply, is they have the Sole power to Judge. If one is to believe in Three Seperate But Equal Branches of Government. Than it make perfect sense that they retain equal power of the other branches. I assume people are giddy when the SC ruled against the Bush . If they can rule against the Executive (who is elected nationwide) then they have the Power to rule against the Congress.

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The Congress[quote]Defines by law the jurisdiction of the federal judiciary in cases not specified by the Constitution[/quote]Has some implications, I would think.

Which does not bind the Supreme Court, only lower federal courts. If that was the Case, Supreme Court would have never heard the Gitmo Cases.

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Which does not bind the Supreme Court, only lower federal courts. If that was the Case, Supreme Court would have never heard the Gitmo Cases.
It would be good if you were to read the article. Sorry, I forgot to provide the link. The article was drawing out the duties of the three branches and didn't specify " lower federal courts". Only the "Federal Judiciary". That would include the Supreme Court, I believe. I confess that I don't know all that this implies, and I'm pretty sure that you don't either.

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Does "problem or symptom" preclude my point? I tried to make the case that the tripartite "checks and balances" is defective in failing to give democracy full run. The parliament design does away with the Second Branch as the Prime Minister becomes the Chief Legislator. I think the Supremes ought to be about the courts rather than trying to be the unelected arbiters of what the people's representatives can do.

If there are problems in the will and voice of "the people" in the parliament, there are equally serious problems in an established Curia of Democracy. I don't think there is any way to create a High Court that will defend democracy from corruption and aristocracy rather than be a problem for democracy by serving both its enemies. If we want to have them defend "equality of citizenship" from prejudice and the powers of domination, I would be willing to see how that could work. I think the history of the Supremes is a pathetic drag on democracy.

When did the Supremes rule against Bush? They selected him by stopping the vote count and gave his wars a pass. They have been incredibly slow on civil rights for blacks, women and gays. They fail to defend election integrity and have established the power of money.

My parliament would be based in localities rather than Big States. I am willing to take a chance on democracy.

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If that was the Case, Supreme Court would have never heard the Gitmo Cases.
Oh, BTW, according to this reference, The SC had no jurisdiction to hear Gore v Bush without Congress saying so. I don't know of anything in the Constitution that gives the Federal Judiciary jurisdiction over State election law.

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Quote Art:
Which does not bind the Supreme Court, only lower federal courts. If that was the Case, Supreme Court would have never heard the Gitmo Cases.
It would be good if you were to read the article. Sorry, I forgot to provide the link. The article was drawing out the duties of the three branches and didn't specify " lower federal courts". Only the "Federal Judiciary". That would include the Supreme Court, I believe. I confess that I don't know all that this implies, and I'm pretty sure that you don't either.

Guess what the Supreme Court did when Bush Congress tried to strip the Supreme Court of thier ability to consider writs of habeas corpus for Gitmo Prisoners. They rules the legislative act unconstitutional.

Jurisdiction stripping

"Congress may not strip the U.S. Supreme Court of jurisdiction over those cases that fall under the Court's original jurisdiction defined in the U.S. Constitution, and instead Congress can only limit the appellate jurisdiction of the Court"

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Quote Art:
If that was the Case, Supreme Court would have never heard the Gitmo Cases.
Oh, BTW, according to this reference, The SC had no jurisdiction to hear Gore v Bush without Congress saying so. I don't know of anything in the Constitution that gives the Federal Judiciary jurisdiction over State election law.

Yes they did

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Quote DRC:

When did the Supremes rule against Bush? They selected him by stopping the vote count and gave his wars a pass.

Vote counts Gore would have lost anyway. Supreme Court did not change the outcome of the Election

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"Congress may not strip the U.S. Supreme Court of jurisdiction over those cases that fall under the Court's original jurisdiction defined in the U.S. Constitution, and instead Congress can only limit the appellate jurisdiction of the Court"
[/quote]Well, here's what your article says about origional jurisdiction.
Section 2 provides that the Supreme Court has original jurisdiction in cases affecting ambassadors, ministers and consuls, and also in those controversies which are subject to federal judicial power because at least one state is a party; the Court has held that the latter requirement is met if the United States has a controversy with a state.[5][6] In other cases, the Supreme Court has only appellate jurisdiction, which may be regulated by the Congress. The Congress may not, however, amend the Court's original jurisdiction, as was found in Marbury v. Madison,5 U.S. (Cranch 1) 137 (1803) (the same decision which established the principle of judicial review). Marbury held that Congress can neither expand nor restrict the original jurisdiction of the Supreme Court. However, the appellate jurisdiction of the Court is different. The Court's appellate jurisdiction is given "with such exceptions, and under such regulations as the Congress shall make."
Was the United States in a controversy with a state? I thought it was Gore in a controversy with Bush. I don't remember any ambassadors, ministers or consuls being involved.


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Quote Art:

Was the United States in a controversy with a state? I thought it was Gore in a controversy with Bush. I don't remember any ambassadors, ministers or consuls being involved

It's the Law.

According to 28 U.S.C. § 1257:

Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States

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Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ ofcertiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States
Were there any treaties involved? Were any Florida State laws held to be repugnant to the Constitution, treaties, or laws of the United States? As I recall, the claim was that the State Elections board should be held to State law requiring a full recall. This would seem to me to be an endorsement of the Constitutionality of Florida's recall laws. what part of 28 U.S.C. § 1257 was involved here?

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Quote Art:
Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ ofcertiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States
Were there any treaties involved? Were any Florida State laws held to be repugnant to the Constitution, treaties, or laws of the United States? As I recall, the claim was that the State Elections board should be held to State law requiring a full recall. This would seem to me to be an endorsement of the Constitutionality of Florida's recall laws. what part of 28 U.S.C. § 1257 was involved here?

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Perhaps my mistake stopped you. (I meant to say "As I recall, the claim was that the State Elections board should be held to State law requiring a full recall". I intended to say "recount". (As we all recall, it was the final judgment of the highest court of the State of Florida that the votes should all be properly recounted).

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If all the votes in Florida HAD BEEN COUNTED Gore wins. Fact. You keep blowing smoke up your own ass so you can believe what you want. In any case, the Supremes acted improperly to stop the vote count.

How happy were you guys with Bush/Cheney? No failure is ever enough to disturb the true believers.

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Quote DRC:

If all the votes in Florida HAD BEEN COUNTED Gore wins. Fact.

Also a Fact. GORE never Asked for a Full Statewide recount. Nor did the Florida Supreme Court. NOBODY asked for it FACT, He still lost There was no senerio in REALITY. that Gore won florida.

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Quote Art:

Perhaps my mistake stopped you. (I meant to say "As I recall, the claim was that the State Elections board should be held to State law requiring a full recall". I intended to say "recount". (As we all recall, it was the final judgment of the highest court of the State of Florida that the votes should all be properly recounted).

Review of limited sets of ballots (initiated but not completed) •Gore request for recounts of all ballots in Broward, Miami-Dade, Palm Beach, and Volusia countiesBush by 225•Florida Supreme Court of all undervotes statewideBush by 430•Florida Supreme Court as being implemented by the counties, some of whom refused and some counted overvotes as well as undervotesBush by 493

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Review of limited sets of ballots (initiated but not completed) •Gore request for recounts of all ballots in Broward, Miami-Dade, Palm Beach, and Volusia countiesBush by 225•Florida Supreme Court of all undervotes statewideBush by 430•Florida Supreme Court as being implemented by the counties, some of whom refused and some counted overvotes as well as undervotesBush by 493
I guess this is supposed to mean something to us. We still haven't found where the SC actually had jurisdiction to even hear the case.

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Quote Art:

I guess this is supposed to mean something to us. We still haven't found where the SC actually had jurisdiction to even hear the case.

It was suppose to put the Nail in DRC's Gore would have won fantasy after 12 years.

Jurisdiction was granted based on the Equal protection Clause of the 14th amendment.

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Jurisdiction was granted based on the Equal protection Clause of the 14th amendment.
Wasn't this the part of the opinion that said a recount would do irreparable harm to Bush? Not bothering with the fact that disallowing the recount did irreparable harm to Gore.

How do your think the recount would have violated the 14th Amendment? I think the 12th amendment would have been more relevant.

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Quote Art:

Wasn't this the part of the opinion that said a recount would do irreparable harm to Bush? Not bothering with the fact that disallowing the recount did irreparable harm to Gore.

How do your think the recount would have violated the 14th Amendment? I think the 12th amendment would have been more relevant.

You will have to produce the opinion regarding "irreparable harm" to Bush.

SC found that the Recount using different standards was a Equal Protection violation. They also concluded that the Florida Supreme Court Recount violated Florida Law regarding election deadlines. So they Terminated the Recount. The supreme Court gave Gore the option of returning to the Florida Supreme Court on the Deadline issue and GORE decided to NOT pursue it. Thereby ending the legal battle.

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Well, here are the arguments of Scalia and the petitioners.

The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.[13]

The dissenters opined: "Counting every legally cast vote cannot constitute irreparable harm... Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election."[13] The four dissenting justices argued that stopping the recount was an "unwise" violation of "three venerable rules of judicial restraint", namely respecting the opinions of state supreme courts, cautiously exercising jurisdiction when "another branch of the Federal Government" has a large measure of responsibility to resolve the issue, and avoiding making peremptory conclusions on federal constitutional law prior to a full presentation on the issue.

Scalia didn't want to allow a process that would determine which votes were legitimate. The Gore people were absolutely correct that Scalia's solution would "inevitably cast a cloud on the legitimacy of the election", wouldn't you say? Now, we'll never know. It was all about clouds. Doesn't seem to me a good foundation for the SC to take onto itself the jurisdiction to hear this case.

"

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Quote Art:

Scalia didn't want to allow a process that would determine which votes were legitimate. The Gore people were absolutely correct that Scalia's solution would "inevitably cast a cloud on the legitimacy of the election", wouldn't you say? Now, we'll never know. It was all about clouds. Doesn't seem to me a good foundation for the SC to take onto itself the jurisdiction to hear this case.

would have been better if you have posted the whole passage.

"It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success. The issue is not, as the dissent puts it, whether "[c]ounting every legally cast vote ca[n] constitute irreparable harm." One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, "legally cast vote[s]." The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires"

Sounds completely reasonable to me.

Now, we'll never know

You are wrong, we do know. As well as we can. As I posted to DRC. A study was done using the standards set forth by the Florida Supreme Court. Gore still lost.

Only in a Full review of all ballots and every dimple, optical mark, hang chad and whatever, does Gore win.

That is why I and many say, Gore Lost Florida, because nothing that was offered at the time would have resulted in a Full review of all Ballots.

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Oh? An assertion not supported by facts in evidence. Have you read Jeffrey Toobin's _The Nine_? Or do you simply discredit anything that doesn't agree with your position?

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Quote Original Ray:

Oh? An assertion not supported by facts in evidence. Have you read Jeffrey Toobin's _The Nine_? Or do you simply discredit anything that doesn't agree with your position?

Fantastic drive by, Did you have something in mind or do I need to buy the book, read it and get back to you.

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Because Gore put country over party, something the other side has not done in a long, long time, he did not pursue a court review or pout. He should have given what Bush and Cheney did to the country, but that is only another question for you to answer. The Supremes had no business in the question, 14th or not, and were so embarassed they said it had no precedent value. Really!

It is another reason I want us to think about democracy and get over this wretched piece of crap we wrestle with in the 21st Century.

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would have been better if you have posted the whole passage.
No, that doesn't make it any better. It only gives us more to argue about. It does nothing to explain a basis for the jurisdiction of the Supreme Court.
Only in a Full review of all ballots and every dimple, optical mark, hang chad and whatever, does Gore win.
Well, yeah. Scalia decided that reviewing difficulties with the butterfly ballot and other incompetencies was just too inconvenient for deciding a Presidential election. The Constitution doesn't say that the Supreme Court can take jurisdiction if there is a question of convenience or messiness.
You are wrong, we do know. As well as we can.
Well, Scalia kind of put his own arbitrary limits on how well we can know, didn't he?

It was all about clouds. Scalia created a huge cloud. A cloud that did irreparable harm to Gore and the legitimacy of Bush's Presidency. He created his own 14th amendment issue.

It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success.
I don't think it suffices at all. Scalia is telling us that this opinion ("believe that the petitioner has a substantial probability of success") is all he needs to know to decide the course of an election. The decision was not in any way an attempt to resolve the issues presented to them. He "solved" a problem that he was never asked to solve. Scalia just sorta felt like Bush might have gotten the majority of the votes (as is required by the 12th amendment), but didn't want to see a recount that would have arrived at a result that he didn't want. He had no Constitutional basis for hearing the case. The questions over hanging chads, optical marks and whatever were not Scalia's place to resolve. States are allowed to have their own procedures for determining who got the majority of the votes. It's not up to the Supreme Court to take the process away from them for its own peace of mind.

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Quote Art:

No, that doesn't make it any better. It only gives us more to argue about. It does nothing to explain a basis for the jurisdiction of the Supreme Court. [quote]

As I said, 14th amendment violation. That was thier jurisdiction.

[quote] Well, yeah. Scalia decided that reviewing difficulties with the butterfly ballot and other incompetencies was just too inconvenient for deciding a Presidential election. The Constitution doesn't say that the Supreme Court can take jurisdiction if there is a question of convenience or messiness.

But they can if they see equal protection violations. Which they did. And that any attempt to correct these problems would have exceeded the limit set by Florida Law.

Well, Scalia kind of put his own arbitrary limits on how well we can know, didn't he?

Scalia can do whatever he wants. He does however need to convince 4 other members of the Court.

I don't think it suffices at all. Scalia is telling us that this opinion ("believe that the petitioner has a substantial probability of success") is all he needs to know to decide the course of an election. The decision was not in any way an attempt to resolve the issues presented to them. He "solved" a problem that he was never asked to solve. Scalia just sorta felt like Bush might have gotten the majority of the votes (as is required by the 12th amendment), but didn't want to see a recount that would have arrived at a result that he didn't want. He had no Constitutional basis for hearing the case. The questions over hanging chads, optical marks and whatever were not Scalia's place to resolve. States are allowed to have their own procedures for determining who got the majority of the votes. It's not up to the Supreme Court to take the process away from them for its own peace of mind.

Your mental powers are amazing. What am I thinking right now?

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Capital
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Sep. 30, 2011 3:51 pm

Shallow and sopist thoughts, for sure. But it is easy to see the rocks in the river.

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DRC
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Jul. 31, 2007 4:01 pm
Your mental powers are amazing
Doesn't take a mind-reader. Just the ability to read the words that Scalia himself wrote. "It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success." That is all he had to offer, and that, he said, was all he needed.

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Art
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Jul. 31, 2007 4:01 pm
Quote Art:
Your mental powers are amazing
Doesn't take a mind-reader. Just the ability to read the words that Scalia himself wrote. "It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success." That is all he had to offer, and that, he said, was all he needed.

And he was right. Bush did substational probability of success. As the post election studies concluded.

It was the "Scalia just sorta felt like Bush " & "but didn't want to see a recount that would have arrived at a result that he didn't want"

He had no Constitutional basis for hearing the case.

The 7-2 ruling on the equal protection would disagree with your assestion.

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Capital
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Sep. 30, 2011 3:51 pm

Heres' the part where the dissenting justices expressed their feeling about SC jurisdiction.

The dissenting opinions strongly criticized the five justice majority for involving the Court in state-level affairs. Justice Stevens' dissent (joined by Justices Breyer and Ginsburg) concluded as follows:[37]

What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

Art's picture
Art
Joined:
Jul. 31, 2007 4:01 pm
Quote Art:

Heres' the part where the dissenting justices expressed their feeling about SC jurisdiction.

The dissenting opinions strongly criticized the five justice majority for involving the Court in state-level affairs. Justice Stevens' dissent (joined by Justices Breyer and Ginsburg) concluded as follows:[37]

What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

Should I weep a tear for them. If it actually was a State affair, I might just agree. But the Election of the US President is a National Affair.

Pretty sad really 7-2 aggred thier was a 14th amendment violaton. yet only 5 of them were willing to do something about it. Should speak volumes about the Liberal court.

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Capital
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The Real Carbon “Monster” Revealed

Another day, another stupid assault on the truth by the fossil fuel industry and its paid lackeys. In a recent op-ed for the New York Post, Tom Harris, the executive director of the so-called International Climate Science Coalition -- an organization that’s funded, in part, by the fossil fuel industry -- blasted Leonardo DiCaprio for his work on “Carbon,” a new documentary on climate change that I helped write and present.

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