Like it or not, the Supreme Court WILL decide the presidential election...

[regnaD kciN]

...either by refusing to hear the Trump team's case, or by agreeing to hear it and either ruling for or against them. There's no way to avoid it.

And that's a problem. Because, even if the best-case scenario plays out, it will only mean that, when presented with an evidence-free partisan case, the impulse to "do the right thing" won out over the temptation to decide solely on the basis of the Court majority's political advantage...this time.

Eventually, that impulse won't win out. (In fact, it's at least slightly possible it might not win out this time.)

And, as long as we have the current Supreme Court setup, that's going to be a ticking time bomb for our democracy. The question iisn't "will it go off?"...it's "when will it go off?"

[a kennedy]

1. No, No, No, No, No.

this gawd damn election CAN NOT GO TO THE SUPREME COURT.

[Laelth]

8. It's already there.

Trump is appealing the decision of the Pennsylvania Supreme Court. The SCOTUS now has the right to decide whether to hear the case or not.

This time, I suspect that the SCOTUS will refuse to hear the case, but who knows? The ball is in their court.



-Laelth

[StarfishSaver]

28. It's not there

No case is before the Court until it grants certiorari.

[c-rational]

29. Not according to Lawrence Tribe.

https://www.democraticunderground.com/100214634787

[regnaD kciN]

41. Once again, Professor Tribe doesn't overrule the Supreme Court...

Sure, under current legal principles, they can't review the case. And, if they decide they can't review the case, then those principles remain. But, if four of the current Justices decide to grant cert, they have essentially created a new legal principle that says they can. They have all the power to do so or not, only constrained by their own sense of right and wrong. Now, it may happen that said sense will cause them to uphold the previous principle. But, if not, to whom are you going to appeal a SCOTUS decision? They're the court of final appeal.

[Gothmog]

53. Prof. Tribe thinks that the SCOTUS has no jurisdiction due to "adequate and independent state proced

Link to tweet

[Laelth]

60. Any excuse will do.

If that’s the stated reason that the SCOTUS advances to decline to hear the case, fine. That might be the easiest argument to make.

-Laelth

[helpisontheway]

2. Which case are you referring to? I'm pretty sure I read that the PA case could not go to SCOTUS?

So you are saying that they would be disenfranchise millions of people over several states?

[Laelth]

13. Could not? Why not?

The SCOTUS has every right to review a decision of the Supreme Court of Pennsylvania if they are asked to do so. Trump is asking them to do so. The SCOTUS may or may not choose to hear the case, but Trump is going to put the ball in their Court.

We shall see what we see.

-Laelth

[blitzen]

21. No, see Lawrence Tribe's explanation from yesterday...

The decision was based on some procedural question and it is absolutely not possible that it can go to the SCOTUS

[helpisontheway]

36. Thank you! I was pretty sure I read that last night. Nt

[regnaD kciN]

38. It is "absolutely not possible"...IF the SCOTUS decides so.

Otherwise, if they grant cert for the case, what are you going to do? Point out to them that Prof. Tribe concluded it isn't possible and tell them they can't hear it? Appeal it to a higher court?

Here's the basic unpleasant fact about our judicial system: a SCOTUS majority can do whatever it wants. If procedures dictate they shouldn't be able to do something, and they want to do it anyway, they can simply establish new binding precedent allowing them to do it, and the only real option to prevent it is all-out revolution.

[c-rational]

33. See post 29. Not good to sow heart stopping concern, especially when the facts speak otherwise!

[jrthin]

37. I agree with you!

[Disaffected]

42. Preach it brother/sister.

I wish all these armchair lawyers would stop with the ill informed opinionating.

[BannonsLiver]

46. +1

The two posters who think they know more than Tribe.

[grantcart]

40. I believe there are numerous reasons that a lower court ruling cannot be appealed

to the Supreme Court

1) If a State Supreme Court decides an issue that is relevant only to a State Constitution with relevant nexus to a US Constitution issue there would be no basis to appeal

2) If an Appeals Court ruled that the form of the case lacked a legal basis then you could not appeal it to the USSC..

3) If the Appeals Court rules that the people who brought the suit had no standing to file, I don't believe that can be appealed.

An example of the first would be if the Washington State Legislature passed a tax on income that the WA SC found violated the state constitution prohibition on income tax there would be no basis for a SC review.

An example of the second would be if there was a law requiring a civil claim to be filed in 3 years and the Appeals Court finds as a matter of fact that the claim was made 5 years after the fact then there wouldn't be an reversible issue to appeal.

Tribe is arguing that the way the Appeals Court ruled it didn't allow for an appeal.

[regnaD kciN]

43. No Appeals Court can tell the Supreme Court it can't allow for an appeal...

...if said SCOTUS wants to hear it.

Sure, we can hope they won't this time, but there's no certainty -- and even less certainty that a future Court won't do so.

[grantcart]

51. Really how infantile. No one has suggested that the Appeals Court is TELLING the SC anything

Every court has its area of jurisdiction and the Supreme Court is no different. The Supreme Court is only the final court on issues that pertain to federal law

The United States Supreme Court is a federal court, meaning in part that it can hear cases prosecuted by the U.S. government. (The Court also decides civil cases.) The Court can also hear just about any kind of state-court case, as long as it involves federal law, including the Constitution.

If an issue is only relevant to a state constitution and does not involve any federal statute or constitutional issue then it cannot be appealed to the US Supreme Court.

Example

WA Constitution prohibits an income tax. WA state legislature passes a state income tax. WA Supreme Court rules income tax unconstitutional. No federal laws or US Constitutional issues involved, it cannot be appealed to the US SC for them to rule on whether or not the law is or is not constitutional under the state constitution.



Laurence Tribe is a Harvard Professor of Law, founder of the American Constitution Society and has appeared before the SC 36 times.

He states that there are no federal issues, only state issues in the suit so it cannot be appealed to the SC

Link to tweet

And here’s the best part: The PA Supreme Court’s decision rests on what’s called an “adequate and independent state procedural ground,” which the US Supreme Court lacks jurisdiction to review. So it’s totally and irrevocably final.

[Ms. Toad]

14. Each court evaluates their own jurisdiciton -

So even though - theoretically - there is an independent and adequate state ground for the PA case, the attorneys in that case could ask the court to hear it.

I'm confident (as is every attorney I've spoken with) that - under the circumstances that now exist - this election will not end up in the Supreme Court.

(Prior to the electoral vote being clear, several of us were not so confident.)

[boston bean]

3. No.

[Laelth]

4. This time, I think they will refuse to hear the case.

But I would have never guessed that they would hear Bush v. Gore, either, yet they did.

It’s a fool’s errand predicting what any Court will do, but the point of the OP is well-taken. Next time, they might let fascism win. It’s knocking on the door ... loudly.

-Laelth

[mvd]

7. The difference this time is multiple states and evidence free cases involving a lot of votes

Even if say justices like Alito, Thomas, and Barrett wanted to steal the election for Trump, I don’t think Roberts would allow it. He would shut the talk down.

[Laelth]

17. I agree ... this time.

The OP’s salient point is that we remain very vulnerable to fascism going forward from here.

-Laelth

[mvd]

19. That is true

Hopefully we get enough of a Senate majority in 2022 to cancel out Democrats who don’t want Supreme Court reform.

[DetroitLegalBeagle]

23. If those three can convince either Gorsuch or Kavanaugh to hear the case

Then there isn't anything Roberts can do to stop it from being heard. It only takes 4 votes to grant cert.

[mvd]

25. He can definitely talk to them and lay out the consequences for the Court and the country

I don’t feel it will even come to that, though.

[exboyfil]

5. It would have to be three separate cases

To decide the election. This is not like Florida at all.

One of them might crawl its way to the SC, but I don't see it.

[greenjar_01]

6. If the Supreme Court invalidates a 6 million vote majority and 306 electoral college win

There will never be another election in this country, nothing Nick Danger says will matter a bit, and most people posting on this board will be murdered by Trump militias within the next three years.

It's really not worthwhile imagining such a thing, to be honest.

[PCIntern]

32. Nick Danger, Third Eye

[stopbush]

9. How is refusing to hear a case determining an election?

Faulty premise.

[greenjar_01]

12. Are you scared?

That's the point - and only point - of the OP.

[stopbush]

50. No. Team tRump's embarrassing court motions scare me about as much as

the end of the world/ burn in hell crap from the fucking Xians.

[StarfishSaver]

30. It's not

This is just more fear-mongering.

[ecstatic]

52. I can't speak for the OP, but we are at the mercy of a very corrupt

republican party. Just waiting to see if they'll uphold the law or not.

It looks like they will, this time, but it should be obvious to everyone that they would have gone along with a coup if tRump had been a more capable, competent and qualified republican president.

[Doodley]

10. Trump will be utterly humiliated if it goes to SC.

[unblock]

11. That ship already sailed. See Bush v. Gore....

That time, the Supreme Court only had to make a single indefensible decision in the name of political corruption. That they could do.

This time, they would have to overturn three separate state results, which would mean three indefensible decisions.

That's a bridge too far. Actually, two bridges too far.

[magicarpet]

15. Orange Fascist is a bonkers buffoon,...

... the next AmeriKKKan Fascist might be much less cray-kray,... then we will be royally fucked.

[JI7]

16. How is refusing to hear a case supposed to be the SC deciding a case ?

[Frasier Balzov]

18. How is it any different really?

How is it different from SCOTUS deciding the scope and limits of rights and protections in every other area of our lives?

Conservatives seem to view SCOTUS itself as inherently tyrannical.

[brettdale]

20. Even if it goes to the SC

They will rule in Biden's favor and he will become President.

Sad thing is though, it might not be 9-0 as it should be.

[brettdale]

22. Whern does the SC make up its mind to take the case

This week??, next week???

[Alex4Martinez]

24. The Senate. We need two wins in Georgia in January and then no more GOP, ever.

Obviously, they can't be trusted.

We need the Senate, then we need to add seats to the court.

[rso]

48. Scotus

Joe Manchin has already said he would not vote to change the Senate rules. So we will have to wait until 2022 and hope we pick up a couple of additional Senate seats to change the rules for expanding Scotus.

[fearnobush]

26. Bush v Gore was different

Regardless of its bias in the decision, SCOTUS determined that FSC violated equal protection by granting each country its own method for determining what a vote or a non vote was based on faulty punch cards thus setting a no equitable Statewide standard and that Florida law regarding the lack of standard was too a violation of equal protection clause.

The PA case is vastly different since there is a statewide standard in place. The Trump idiots are arguing because some counties choose the have votes cured while others did not. The law set the standard as to allow the counties to choose if they wanted to cure or not to cure since many counties lack the resources to that in time for Election Day.
Florida set no choice or even method of counting or curing ballots. Essentially it was county free for all in deciding what counted and scotus jumped all over that.

[DEM1955]

27. No worry...

SCOTUS will rule in Biden's favor because lack of evidence. Calm down and breathe.

[regnaD kciN]

45. I think the odds are that they will do that...

...but, until they do, it's still uncertain. And, which was my main point, unless we manage to reform our judicial system, the odds are that, eventually, a partisan Court will find a way to overturn a clear-cut election result such as the one we have right now.

[Rice4VP]

31. They have a bunch of lawsuits that they are ignoring. All that they

have to do is let the clock run out for two weeks. The election isn’t close, why would they need to decide anything?

[tavernier]

34. But I suppose that could happen in any election,

if the loser insists on refusing all the rulings and just keeps appealing.

[CaptainTruth]

35. I'll say no, the voters will.

[brooklynite]

39. Meaningless comment...

By that measure, every Court decided the Election simply by doing its job.

The bottom line is that the SC won’t take the case because there isn’t a case to take; just like they reject hundreds of cases - having nothing to do with elections - every year.

[Turin_C3PO]

44. Zzzzzzz....

[disalitervisum]

47. The United States of Learning Disability

LOL how long have you all been living in this country?

Obviously, they can do whatever they want to.

[Septua]

49. There IS no case...

30+ suits filed and dismissed or ruled against because of NO evidence, beyond some number of "signed affidavits", Lara Trump saying the outcome doesn't "feel right", Rudy saying the "numbers don't add up" AND Trump saying Joe couldn't have gotten 80M votes because he didn't draw a big crowd at his rallies...WTF?

But the most obvious flaw in Trump's strategy is the simple fact everyone including Trump, knows the election wasn't rigged. The only fraudulent aspect surrounding this election is TRUMP. He said way back, he could only lose if the election was rigged. He lost, therefore, the election was rigged...

[Baclava]

54. There is no national election, states are in charge of their voting and select their electors

It's over, he lost, STATES RIGHTS! lolololol

[onenote]

55. Unlikely. They would only "decide" it if they were asked to review cases

from states representing at least 36 electoral college votes where the number of votes at issue would be enough to overturn the results in that particular state.

So far, the only case on track to the Supreme Court is from Pennsylvania.

[Gothmog]

56. trump's lawyers have not presented facts or evidence to establish a case or controversy

I doubt that the SCOTUS will get involved

Link to tweet

[kskiska]

57. I remember during Bush vs Gore

it was explicitely said that the case was not to be used as a precedent. I guess that remains to be seen.

[Bradshaw3]

58. I have a feeling we'll be getting these threads long after Biden is sworn in

Maybe in the future the "drumpf-is-all-powerful-and-will-destroy-the-world" folks will spawn a new movement like the anti-vaxxers in which reason and facts can't permeate their worldview.

[budkin]

59. No. They won't.

They won’t be taking the case BECAUSE they won’t be deciding the election.