“The Case That Could Have Altered ‘Bush v. Gore'”

Tony Mauro writes this fascinating article (registration required) in Legal Times on a 1912 recently discovered (by Green Bag editor Ross Davies) in-chambers opinion by two Justices stemming from an electoral college dispute between supporters of Teddy Roosevelt and Howard Taft. A snippet:

    [Justices] Pitney and Van Devanter agreed the dispute over the electors raised a federal question. But in words that could resonate soon, they went on to say, “As courts are reluctant to interfere with the ordinary course of elections, whether primary or otherwise, as the rights asserted are not clear, but doubtful, and as the injury and public inconvenience which would result from a supersedeas or any like order, if eventually the judgment of the state court should be affirmed or the writ of error dismissed, would equal the injury which would otherwise ensue, we think no supersedeas or kindred order should be granted.”
    The terminology is dated, and the phrasing would have benefited from an editor, but the essence of the decision is this: In the midst of an election dispute, if ruling in favor of one side is likely to cause the same “injury” as ruling for the other side, the Supreme Court should just keep out of the dispute until the state courts sort things out.

You can find the opinion itself posted here on the Green Bag‘s website.

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