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Does Bush v. Gore Have Precedential Value?:
In the Yale Law Journal Pocket Part, Yale Law student Chad Flanders has a very interesting post on whether Bush v. Gore has precedential value. He writes specifically on the phrase in the majority opinion limiting its scope, in which the Court wrote:
The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.
  (emphasis added)

  Does the italicized sentence mean that the Bush v. Gore opinion is functionally nonprecedential? Flanders writes:
[T]he use of the familiar device of "limiting a case to its facts" in Bush v. Gore has a significance that has been almost universally missed in the flood of commentary on the case. When the Supreme Court limits a case to its facts, it is on the way to overruling it, by nullifying the principle that decided the case. Thus, in an entirely typical use of the phrase, Justice Thomas wrote in M.L.B. v. S.L.J. that "[e]ven if the Griffin line [of cases] was sound, Mayer was an unjustified extension that should be limited to its facts, if not overruled." Sometimes a concurring Justice will say that the majority opinion was limited to its facts as a way of expressing a disagreement with the principle of the majority, even though the Justice agreed with the result. But Bush v. Gore is wholly unique in using limiting language to (apparently) nullify the principle of an opinion, not in a concurrence to the opinion, but in the majority opinion of the very case. It is no wonder that Bush v. Gore has caused such confusion in the lower courts. It is as if the Supreme Court had written an opinion, and then, in a bow to René Magritte, put as its last sentence: "This is not an opinion." What is a lower court to do?
  I wonder, though, what's the evidence that there is something "wholly unique" about the limiting phrase in Bush v. Gore? Flanders writes that the uniqueness is that the limiting language was used "to (apparently) nullify the principle" of the opinion. But what authority supports that reading? Maybe I'm missing something, but I don't see it in the opinion. Granted, this is a reading that some critics have taken in order to skewer the opinion; the argument is that if the Court effectively made its decision nonprecedential, then it's further evidence that the decision was lawless. But this is a gloss made by critics, not a reading that seems to be justified by the opinion itself.

  To be clear, I am not defending Bush v. Gore; I find the per curiam opinion highly unpersuasive. However, it seems to me that the limiting phrase in that case is no different from limiting phrases in lots of other Supreme Court majority opinions. The Supreme Court often makes case-by-case decisions, in which it announces an outcome for the present circumstances without indicating how far it might take that reasoning in other cases. But this isn't a sign that the Court is on the road to overruling anything; whether it's justified or not, this is a relatively routine type of minimalist move. As a result, it seems to me that the question of whether Bush v. Gore has any precedential effect is relatively easy to answer: like other decisions with similar limiting language, the case has precedential value on its facts with uncertain influence once you wander from those facts.

  Thanks to PrawfsBlawg for the link.
Tom Holsinger (mail):
Bush v. Gore should be read in mind with the dissent of Chief Justice against the Florida opinion at issue. He told the Florida majority what was about to happen.

I.e., this one is about hubris and, unless idiots care to repeat the mistakes of history despite all the evidence, of little precedential value.
11.21.2006 1:46am
Lev:
So. It isn't precedent unless someone argues successfully that it is precedent. Big deal.
11.21.2006 2:04am
OrinKerr:
Lev, I'm not sure I know what you mean.
11.21.2006 2:24am
StevenK:
Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

You say other Supreme Court opinions have similar limiting language. Could you name a few?
11.21.2006 3:08am
OrinKerr:
StevenK,

I would say there are a number of these cases every Term, although of course it depends on exactly what cases you think count. The most common areas for this seem to be fact-specific constitutional areas such as due process, takings, consent under the Fourth Amendment, voluntariness under the Fifth Amendment, and the like: in these areas, the Court often uses a "totality" type of test in which the outcomes are limited to the facts.

I just did a quick westlaw search for some key words that might make it easier to find them -- focused, just for now, on explicit statements of the holding of the case that expressly incorporated statements limiting them to the circumstances, and thus looking for "circumstances" and "hold" in the same sentence with a limiting word like "specific" or "narrow"-- and here are a few of the ones that popped up:

Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980): "We hold that under the narrow circumstances of this case--where there is a separate and distinct state statute authorizing a clerk's fee "for services rendered" based upon the amount of principal deposited; where the deposited fund itself concededly is private; and where the deposit in the court's registry is required by state statute in order for the depositor to avail itself of statutory protection from claims of creditors and others--Seminole County's taking **453 unto itself, under § 28.33 and 1973 Fla.Laws, ch. 73-282, the interest earned *165 on the interpleader fund while it was in the registry of the court was a taking violative of the Fifth and Fourteenth Amendments."

Little v. Streater, 452 U.S. 1 (1981): "We hold that, in these specific circumstances, the application of Conn.Gen.Stat. § 46b-168 (1981) to deny appellant blood grouping tests because of his lack of financial resources violated the due process guarantee of the Fourteenth Amendment."

I.C.C. v. American Trucking Associations, Inc., 467 U.S. 354 (1984): "Although rejection of effective tariffs is a form of remedial power not expressly delegated to the Commission, the remedy as proposed by the Commission in this case is closely and directly related to the Commission's express statutory powers and is designed to achieve objectives set for the Commission by Congress. Under these limited circumstances, we hold that the proposed remedy lies within the Commission's discretion."

That was just one or two quick westlaw queries, of course, and the query was very limited (and not one that would have picked up Bush v. Gore itself, for example).
11.21.2006 3:27am
zooba:
See also Lawrence v. Texas, 539 U.S. 558 (2003) ("The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.")

I think, regardless of whether the decision is liberal or conservative in nature, such limiting language is a pretty good indicator of judicial activism. It implies that the court is willing to allow the judgment but not the stated reasoning to have the force of law, which implies the reasoning claimed is not the actual reasoning used. In most cases, that is likely because the actual reasoning is generally non-legal and policy-oriented in nature. What has leaked out overtime about decision such as Roe and Bush v. Gore seems to generally support that. Not that it isn't obvious from the face that Thomas and Scalia sign onto an equal protection argument like this one.
11.21.2006 3:50am
David M. Nieporent (www):
Zooba, really? It sounds to me like judicial minimalism. The case presents a unique set of facts, and the court isn't willing to issue a sweeping ruling that may have unforeseen consequences. Without defending Bush v. Gore itself, the fact that it was issued under severe time pressure is another point in favor of this approach; the court simply didn't have time (or, at least, it felt that way) to consider all possible ramifications of announcing a broad principle.
11.21.2006 6:48am
A.B. (mail):
I'm not sure these other examples really work. Most of them seem to be saying that the opinion only works for one narrow set of facts, which can be assumed in a lot of opinions, but is not always made explicit. Bush v. Gore goes further, not only saying that it works for limted facts but only for this one case. There can be, according to the opinion, no case like this ever again.
11.21.2006 7:16am
Public_Defender (mail):
Zooba, really? It sounds to me like judicial minimalism. The case presents a unique set of facts, and the court isn't willing to issue a sweeping ruling that may have unforeseen consequences. Without defending Bush v. Gore itself, the fact that it was issued under severe time pressure is another point in favor of this approach; the court simply didn't have time (or, at least, it felt that way) to consider all possible ramifications of announcing a broad principle.

So the Court was sure enough of its ruling to decide a presidential election but not sure enough to let another court rely on it to decide a local school board race?

The limiting language displayed the majority's cowardice. They were willing to issue a decision to help an ideologically compatable politician, but afraid that the ruling might help someone they disagree with.
11.21.2006 7:49am
Just Dropping By (mail):
"Lev, I'm not sure I know what you mean."

Orin, I believe that Lev means what every litigator knows -- the concept of "decisions limited to their facts," let alone the holding/dicta distinction, is largely a fiction in the trenches. It wouldn't matter if the SCOTUS printed, "DO NOT CITE!" in 24-point font at the top of the decision, it will be cited by lawyers anyway (probably already has been) and, eventually, a court will issue a order/judgment/opinion/etc. that cites it.
11.21.2006 8:31am
aaaaaaaaaaaaaaaaaaaaaaa:
David M. Nieporent: I agree with Zooba on this one. In these instances, the Court appears to be deciding cases not based on principle, which can and should apply broadly, but according to some external bias. For example, Lawrence should not be read as a case about relationships or sexual freedom--broad principles that might reach to polygamy, gay marriage, adultry, and consensual incest--but about a specific political issue: public acceptance of homosexuality.
11.21.2006 9:01am
AppSocRes (mail):
The situation in Florida was unique: The State Supreme Court created a uniquely odd interpretation of a clause in the state constitution and on the basis of this interpretation decided, after decades of use, that a significant body of black-letter state law governing elections was invalid. The clear intent of the court was to overturn a legitimate election outcome that they did not like. The Supreme Court by a 9-0 vote told the Florida Supreme Court it was out of line and gave that court a chance to redeem itself. The State Court once again, and despite the pleas of its Chief Justice, tried to do an end run around the law. At this point the Supreme Court sensed a consitutional crisis and panicked. They had enough sense to do the right thing -- accept state legislative intent over a blatant power grab by the state supreme court -- but not enough knowledge or time to come up with an appropriate justification. So they limited the impact of their decision to the case at hand. As Judge Posner has noted in a book on Bush v. Gore, the US Constitution states "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." (Article II, Section 1, Paragraph 2). The clear intent is that the legislature, not the state supreme court, will determine how electors should be chosen. The legislature had done that. Florida's state and local officials followed state law and Bush won. All else is but commentary.
11.21.2006 9:08am
Jose Reyes:
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 428 (1993):

"Our holding, however, is narrow. As should be clear from the above discussion, we do not reach the question whether, given certain facts and under certain circumstances, a community might be able to justify differential treatment of commercial and noncommercial newsracks. We simply hold that on this record Cincinnati has failed to make such a showing."
11.21.2006 9:17am
john44232:
None of the cases cited in the comments have the effect of Bush v. Gore.

The other cases claim that the holding applies to "narrow circumstances," "specific circumstances," and "limited circumstances." The phrase in Bush v. Gore, however, is that the "consideration is limited to the *present* circumstances."

The term "present circumstances" seems far narrower than all of these previous holdings; it essentially limits the holding to a single set of facts *at a single point in time*, i.e., the 2000 election. While the other cases leave open the possibility that a specific set of facts could arise in the future to which the narrow holding would apply, Bush v. Gore does not.
11.21.2006 9:37am
Justin (mail):
It is the result-oriented nature of the opinion, with this tacit admission, that makes the whole thing reek of a coup de etat.

I'd imagine that many of the other examples were cases that the justices took and then realized they shouldn't have. But Bush v. Gore is a "special" case, and an unfortunate one.

Not that it would have mattered - Bush would have won in the House of Representatives even if Gore won in Florida. And then 9/11 would have "changed everything."
11.21.2006 9:43am
jrose:
Is Bush v Gore (or other cases with limiting language) an appropriately minimalist decision with "precedential value on its facts with uncertain influence once you wander from those facts?" Or, is it intentionally a one-off with a unique set of facts such that it will never - and should never - be used again?

I may be reading incorrectly between the lines, but I got the impression the Court was desperately hoping to make Bush v. Gore the latter. I'm not sure about the other cases.
11.21.2006 9:51am
Johh Fee (mail):
Orin Kerr is exactly right. The Supreme Court often uses cautionary language about the narrow scope of its opinions, saying such things as "limited to the present circumstances." It doesn't mean that the opinions have no precedential value whatsoever.

To come to the latter conclusion, I think some people begin with the premise that Bush v. Gore was unjustified and lawless, and therefore the Court did not intend for it to have precedential value, and therefore it was unjustified and lawless.
11.21.2006 10:02am
john44232:
Johh Fee: As I mentioned above, "limited to the present circumstances" is *not the same as* the other "such things" the court says. Grouping them all into a category of "narrowing language" doesn't do away with the significant distinction between cases with narrow holdings and cases--or rather, one case--with a single-instance holding.
11.21.2006 10:15am
Duffy Pratt (mail):

Finally, we reemphasize the narrowness of our decision. We do not decide that the President possesses plenary power to settle claims, even as against foreign governmental entities. As the Court of Appeals for the First Circuit stressed,

[t]he sheer magnitude of such a power, considered against the background of the diversity and complexity of modern international trade, cautions against any broader construction of authority than is necessary.

Chas. T. Main Int'l, Inc. v. Khuzestan Water Power Authority, 651 F.2d at 814. But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President's action, we are not prepared to say that the President lacks the power to settle such claims.


Dames &Moore v. Regan, 453 U.S. 654 (1981).

This one is a favorite of mine, because after stressing the principal that the President does not have the power, it then decides, contrary to that principal, that under the narrow circumstances (freeing the Iranian hostages), the President did have the power.

The precedential value of an opinion is not determined by the opinion, but by how its used.
11.21.2006 10:16am
Dell Adams (mail):
In fact, Bush v. Gore has already been cited in a Ninth Circuit decision, Sorchini v. City of Covina: http://www.fas.org/sgp/news/2001/05/sorchini.html


Counsel represents that she violated the rule because she misunderstood the scope of the exception, and we accept that representation. Then again, we may bear part of the responsibility by issuing unpublished dispositions that violate General Order 4.3.a,[1] and so tempt lawyers to cite them as precedent.[2] We therefore decline to impose sanctions. We publish this opinion to avoid such misunderstandings by counsel in future cases.

...

2 This excuse is valid only in this case. See Bush v. Gore, 121 S. Ct. 525 (2000).
11.21.2006 10:43am
CJColucci:
I think Lev's point is a simple one: the precedential force of Case A isn't decided in Case A, but in Cases B and C. Ultimately, anything said in Case A about Case A is just so much noise if Cases B and C decide otherwise. Parsing the language of Case A is what the lawyers will do in Cases B and C because they have to make some intelligible noises in support of their clients' positions, but that exercise should not be confused with establishing a Platonically true precedential force of Case A.
11.21.2006 11:08am
Adam (mail) (www):
Whatever Bush v Gore is, it isn't minimalist. A minimalist decision would have said, "this is not an acceptable way of recounting the votes", but not foreclosed the Florida courts from divining some other method, and certainly would not have made the "safe harbor" decision by itself.
11.21.2006 11:19am
OrinKerr:
Adam,

To clarify, my suggestion was that the limiting phrase was a minimalist move, not that the Bush v. Gore opinion as a whole is minimalist.
11.21.2006 11:26am
Bryan DB:
I think that the intent of SCOTUS at the time was to limit the opinion's precedential value. I think, though, that the opinion was relatively recently cited for its holding.
The 9th Circuit, for example, said:
"In Bush v. Gore, the leading case on disputed elections, the court specifically noted: 'The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.' 531 U.S. at 109. We conclude the district court did not abuse its discretion in holding that the plaintiffs have not established a clear probability of success on the merits of their equal protection claim." 344 F.3d 914 at 918.
If the case is "functionally nonprecedential," then someone forgot to tell the lower courts that the Supreme Court really meant it.
11.21.2006 12:31pm
Adam Scales (mail):
I'd like to read the student's article, but several commenters here (in fine company with most academic opinion circa 2001) seem to me entirely to have missed the point.

I think it is fair to say that many people, including myself, learned a lot about the mechanics of voting as a result of Florida. For some questions, the answer as to what was fundamentally fair could emerge within a short space of time. Thus, I feel comfortable pointing out that there is almost no one who defends as a matter of principle the use of different counting standards within a State (herein of the many species of chad). This is so despite the fact that very plausible arguments exist for both lenient and strict counting protocols; there is no sound basis in an election administered pursuant to State authority for varying those protocols from county to county. I have debated Bush v. Gore with my friends and fellow academics many, many times. I have yet to hear someone actually defend the proposition that it would be FAIR to do this.

Does the Constitution permit it? Judicial liberals are hard-pressed to explain why they would look the other way. And as it happens, judicial conservatives were fortunate in that they could say, with a straight face, that they had never thought of that one before.

At the same time, there was a brief surge of enthusiasm for modern voting technology. Three electoral cycles since have made plain what was obvious to those who paid attention in 2000: punch-cards are terrible, but replacing them substitutes different problems for the problems you have (and think, perhaps incorrectly, that you can handle).

During the Bush v. Gore litigation, I certainly found myself imagining that there could be cases where the disparities between voting technologies were so great that a constitutional issue was raised. But, Bush v. Gore was not that case. The much-derided "good for this train only" limitation did no more than recognize this fact. A nice case that falls somewhere short of that line, but was obviously hinted at in the litigation, would be double-checking votes only from those counties you like (Gore's supremely unsaleable and ironically unecessary strategy).

I AM surprised that the political process has been so sclerotic, polarized, territorial and incompetent, that there is a real possibility of the Bush v. Gore facts reprising themselves. Assuming there is no way to defer to some other body the final decision (and things were looking pretty complicated on Dec. 12, 2000), I believe any court would reach the same core holding of this assertedly non-precedential case: within a State, physically identical ballots must be tallied equally.
11.21.2006 1:44pm
Adam (mail) (www):
Orin, as I understand judicial minimalism, it's about restraining the power of courts as it pertains to matters that can be handled better by the legislature, as opposed to restraining courts as to their power over each other. This isn't that.
11.21.2006 1:46pm
just me:
But of course, the Sixth Circuit has cited Bush v. Gore as the basis for an election-related equal protection case, even though the facts did not directly involve the 2000 Presidential election.

In the trenches, indeed.
11.21.2006 1:51pm
Chad Flanders (mail):
Hi all,

Thanks for the comments. I should say that the Pocket Part piece is a bit of a promissory note for a comment that's forthcoming in the YLJ (I will happily send a copy to any who request it). Orin -- my point in the comment is that there's something special about the use of limiting language ("we limit this case to its facts"), as opposed to narrowing language. In all the cases I've found, when the Court "limits" a past holding, it's nullifying the principle of that case (and thereby limiting its precedential value). A mere narrowing ruling doesn't do this. If you do a search for uses of limiting language, you'll find this (my comment lists and catalogs nearly all of the Court's past uses of limiting language, and doesn't find one where "limiting" means simply "narrowing").

The uniqueness of Bush v. Gore is that it uses limiting language in the majority opinion of a case to apply to the case itself (in this, I think A.B. has my point exactly right). I also take john44232's point that "present circumstances" serves to emphasize the use of limiting language.

Lev and CJColucci's point is a deep one. CJColucci writes (building on Lev): "the precedential force of Case A isn't decided in Case A but in Cases B and C." The question Bush v. Gore presents, if I'm right about my interpretation, is whether Case A can dictate the precedential value of Case A. I'm not sure if this question has an easy answer.

Thanks again, everybody.
11.21.2006 3:38pm
jrose:
Is "[o]ur consideration is limited to the present circumstances" limiting or narrowing language? Although I agree that reading between the lines implies the Court doesn't want Bush v. Gore to be used as precedent, that phrase doesn't strike me as the same as "should be limited to its facts, if not overruled."
11.21.2006 4:12pm
NickM (mail) (www):
Adam - the Florida Supreme Court went beyond what you have discussed in relation to Miami-Dade County, where only part of the county had been recounted. the trial court had rejected the inclusion of any "new votes" discovered by partial recount, and therefore not ruled on the Republican Party's challenges to some of those votes individually. When the Florida Supreme Court reversed the trial court (holding that partially recounting a county was acceptable), it did not send the matter back for factfinding on the individual challenges; it ordered the trial court to accept the county's count as final for those precincts. That's a blatant denial of due process.

Nick
11.21.2006 7:22pm
David M. Nieporent (www):
But of course, the Sixth Circuit has cited Bush v. Gore as the basis for an election-related equal protection case, even though the facts did not directly involve the 2000 Presidential election.
The Ninth Circuit cited it in attempting to shut down the recall election for governor of California on the eve of the election a few years ago; it was quickly reversed en banc.
11.21.2006 7:30pm
Steve:
The question Bush v. Gore presents, if I'm right about my interpretation, is whether Case A can dictate the precedential value of Case A.

A court can certainly preemptively dictate precedential value as an administrative matter, as with the rules in several Circuits that restrict citation of unpublished cases. This provides a source of continued puzzlement to those of us who believe an opinion stands or falls on its reasoning; and if someone finds that reasoning compelling, you can hardly pas a rule to prevent them from adhering to basic logic.
11.21.2006 7:36pm
1881 (mail):
Chad Flanders wrote: "In all the cases I've found, when the Court "limits" a past holding, it's nullifying the principle of that case (and thereby limiting its precedential value)."

Why does the effect of limiting a present holding have to be the same as limiting a past holding? Limiting a past holding may be a diplomatic way to lead to the nullification you describe. This may be why limiting language arises frequently when the Court will nullify a principle. This need not be so when the Court is limiting a present holding. The purpose of the limiting language in a present holding is not the same as it is in a past holding. It is simply to do what AppSocRes described above. Limiting language in a present holding is limited to limiting even if limiting language in a past holding may portend nullification.
11.21.2006 7:44pm
JRL:
Is not every case limited to the "present circumstances"?

The Supreme Court does not issue advisory opinions.
11.22.2006 4:19pm
Visitor Again:
I honor Bush v. Gore--the biggest theft in world history because it enabled the GOP to loot the economy for at least four years and as it turned out eight years--by refusing to vote in any election, local, state or federal, since then. From the time I first became eligible to vote at age 21 in 1964, I missed voting in only two minor elections through the 2000 election. I have not voted since and will not ever again. It's a matter of personal principle and I do not urge my course on anyone else. But I refuse to lend any credibility to an absolutely corrupt election system by participating in it. Ours is not a democracy or even a republican form of government. By the way, I also suspect the Republicans stole the 2004 election through corruption in Ohio. For the record, I also turned in my draft card to Rev. Philip Berrigan in January, 1958 during my last year of law school on the day Benjamin Spock was arraigned for draft obstruction and conspiracy charges. I did so even though I was safe from the draft because I had a fatherhood deferment. I believed carrying a draft card was complicity in an evil system.
11.22.2006 7:10pm
Visitor Again:
Make that 1968, not 1958, as the year of Dr. Spock's arraignment.
11.22.2006 7:13pm
markm (mail):
Visitor Again: Thank you for raising the average intelligence of voting Americans.
11.23.2006 5:56am
Visitor Again:
markm, they deserve what they get.
11.23.2006 7:23am
Think! (mail):
Okay, for those of you obviously motivated to do the research: one glaring question here is, "in the past, when the Court has limited cases to their facts, has the Court itself then gone on to cite those cases; and if so, has it been to distinguish them or to apply the ruling to another set of facts?"

I can't resist replying to markm, either. I still vote, on the off chance that my vote will be counted. But I recognize that it is a sham act, since Bush v. Gore effectively held that counting my vote is discretionary with local authorities. I completely understand and honor those who refuse to participate in sham elections.
11.23.2006 9:21am
Visitor Again:
Thank you, Think1. And what has my intelligence or lack thereof got to do with whether the system is corrupt or not? Nada. All markm offers is ad hominem.
11.23.2006 11:27am