How can the Supreme Court declare a decision they make, not be used as precedent

[Toots]

when the entire purpose of the Court is to establish legal precedent. As far as I can tell the only time in history they ever declared their decision was for only one case and in no way would establish precedent was in Bush* v Gore. Does it establish precedent even though they say it does not, or how does that work? Can lawyers site that case while arguing another?

[liberal N proud]

1. This is not the Supreme Court we all grew up with

They do not follow the same set of values that previous Courts have. This new breed of Justice is dangerous.

[rfranklin]

2. They are the "activist judges" who create their own laws...

for partisan purposes. You remember, the ones the right wingers warned us about.

[KharmaTrain]

3. In Theory...

...the part of the Health Care legislation the rushpublicans hope the Scalito boys will over-rule don't take effect until 2014 and beyond. Yes, a great question as to how can you press a lawsuit about a law that hasn't taken effect. But I'm sure the Scalito 5 are licking their chops at taking a whack at this one...legislating from the bench will increase as the GOOP's legislative power diminishes. It's all they have left.

[LiberalLoner]

6. Unfortunately it is NOT all they have left - they also have violent overthrow of govt :(

[Toots]

8. LOL

Right I can see them now with their little six shooters facing down Special Forces soldiers...:rofl: They can indeed resort to acts of terror and they already have done so but overthrow the government....A complete joke and nothing more than a pipe dream of someone that has never done anything real in their entire life.

[0rganism]

4. I was puzzling over that for a while, too

It seems to me, the Supreme Court established the precedent that it could make decisions which could not be taken as establishing precedent. Of course, this is not really possible under what many of us presume to be our current system of law, so we necessarily have to look at the ramifications. The decision that denies precedent, taken to its natural conclusions, can be seen as undermining stare decisis and could eventually become the basis for nullification of judicial review, or (worse yet) as justification for further ad-hoc interpretations of laws without responsibility or regard to consequence on the part of the high court. Based on the "citizens united" outcome, it appears the latter scenario will prevail.

"Bush v. Gore" is a very shitty decision that simultaneously neuters the judicial hierarchy and empowers the high court to act in a whimsical manner.

[meow2u3]

7. That's why Scalia and Thomas need to be impeached

Scalia's the ringleader of the Fascist Five (Bush v. Gore) who disregarded the law and the Constitution to make a ruling tailor made for one of his friends. Thomas' wife has connections with the Heritage Foundation, whose lawyers were in Bush's corner--he committed a Federal crime by refusint to recuse himself because he knowingly had a conflict of interest.

[0rganism]

9. $100 says they won't be

Hell, I'll even give you odds: 1000 to 1. My $100 says to your dime, they'll serve until they retire or die, and we're stuck with the caselaw mess from every shitty decision they'll make between now and that time, as well as the vile travesties they've perpetrated so far. Do we have a bet?

Don't get me wrong, I agree with every word you said. It's just not going to happen.

[rfranklin]

13. I read that too quickly...I thought you said "transvestites"

I perked up at that point!

[0rganism]

21. we'll never know what they've got on under those robes!

[Doctor_J]

5. Because they're criminals

they should have been impeached long ago. Thomas, Roberts, and Alito all lied at their confirmation hearings, and could be impeached if the Congress had any spine.

[xchrom]

10. It seems to me they also overturn precedent if

They don't like it.

Creating out of whole cloth a one off decision
is just part their agenda.

[Statistical]

11. Do you have a cite in which they indicate it can't be used as precedent?

I am curious as that would be rather unprecidented.

Bush v. Gore is rather unique case on other aspects.

Little known is the fact that it was decided 7-2 that Supreme Court calling for statewide recount was Unconstitutional. This is because State legislature used the terminology "that a legal vote is one in which there is a 'clear indication of the intent of the voter'". 7 of the Justices agreed this standard could never result in uniform counting of votes.

Where 2 of the Justices differed was on weather it was possible for a new uniform standard to be reached by the legislature, and a recount completed by the recount deadline.

Kennedy, O'Connor, Rehnquist, Scalia, & Thomas voted that recount unconstitutional and no new standard could be applied in time.

Breyer & Souter voted that recount was Unconstitutional but new standard could be applied in time.

Ginsberg & Stevens voted that recount was not Unconstitutional.

While the 5 are routinely blasted many don't realize that Breyer & Souter were offering a poison pill. Had all 7 decided that recount was unconstitutional but a new standard could be applied Bush would still have been President. The Republican controlled legislature needed to simply delay long enough to allow the recount deadline to pass.

[struggle4progress]

15. "Our consideration is limited to the present circumstances"

GEORGE W. BUSH, et al., PETITIONERS v. ALBERT GORE, Jr., et al.
ON WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT
<December 12, 2000>
http://www.law.cornell.edu/supct/html/00-949.ZPC.html

[Statistical]

16. I don't think that prohibits it from precedent.

Rather the court was indicating the conclusion was based on numerous unique circumstances.

Note: I don't agree with decision still this is the way I see that they saw it.

1) close count
2) in state that decides national election
3) recount done with differing standards violating equal protection
4) The legislature failed in its duty as the "standard" is vague and abstract
5) Note possible to do another recount under existing standard and meet equal protection
6) Insufficient time to adopt new standard *

Points 1-5 were agreed upon by 7 justices.
Point 6 only by 5.

I think that they are indicating the ruling is based on a very narrow set of circumstances. It is not a very broad ruling. Another recount based on even slightly different situations (statute in effect, time of deadline, etc) could result in a different decision.

[unblock]

19. i think there were a number of ways the problem could have been kicked to the florida legislature

probably including the supreme court refusing to get involved.

ultimately the states control their electors and the strongly republican florida state government could have sent a republican slate of electors and only certified them and effectively decided the election themselves. certainly there WAS time for the courts to declare the election/recount unconstitutional and have florida come up with a non-election route to certifying the electors.

that at least would have had the merit of having a clearly political decision made by clearly political offices rather than by judges. the end result would have been the same in the sense that gore would have lost -- he had no friends in all the necessary places -- but there might have been ramifications within florida.

ultimately, i think the supreme court, by stepping in and trashing their own reputation and legacy, did a favor not to shrub, but rather to the florida republicans.

[onenote]

12. actually, its not that unusual for a court to limit its holding to the particular facts

The decision is Bush v Gore was an abomination, but the court's statement that its "consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities" doesn't strike me as particularly unusual. I read it as a statement that an equal protection argument in an election case must be reviewed based on its particular facts.

[UTUSN]

14. K&R #5 n/t

[Unvanguard]

17. The short answer is "nobody knows."

Some brave lawyer will have to bring it up in an equal protection election case, and see what happens.

[unblock]

18. it's actually logically impossible to really make that claim in the decision itself

whether it gets used as a precedent depends on whether later decisions cite it.

and you can bet that if there's ever any other electoral challenge of a remotely similar nature, some reference will be made, if only to note how the circumstances differ.

all it is is a declaration that the decision is meant to be narrow rather than broad; the effect cannot be seen until much later.

[unblock]

20. establishing precedent is not its "entire purpose"

the court can and does make decisions in individual cases.

one could even argue that that's ALL it does; it just selects those cases carefully so that they are hopefully typical and provide guidance for the lower courts to make their decisions.