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Bush v. Gore, and The Meaning of Cases:

Adam Liptak has an interesting piece in this morning's New York Times about the precedential significance of Bush v Gore (issued 8 years ago this month). The opinion itself contained unusual (and arguably unique, for a Supreme Court opinion) limiting language: "Our consideration is limited to the present circumstances," the majority famously said, "for the problem of equal protection in election processes generally presents many complexities." But as Liptak points out, a number of recent cases have apparently disregarded this limitation and relied on the decision for a more general principles applicable to a broader range of circumstances than those presented in the original case.

For you law students out there, it's a very important object lesson. Like any legal opinion, Bush v. Gore can "mean" many different things; there are inevitably many different ways to characterize its "holding," and you can't tell which one is "correct" just by reading the opinion, however carefully and skillfully you do so. Ultimately, its meaning will determined by what happens subsequent to the decision itself, in the ways in which later courts use it and apply it in future cases. In one view, Bush v. Gore holds, in Liptak's words, that "a court-supervised statewide recount violates equal protection guarantees when it treats similar ballots differently by instructing local officials to use new and insufficiently specified standards." Or, it might have held that "once a state grants the right to vote on equal terms, it may not by later arbitrary and disparate treatment, value one person's vote over that of another" -- a much broader meaning for the decision, and one that will be applicable to many more cases. [The latter reading is the one given to the case by the Sixth Circuit in its recent ruling allowing the challenge to Ohio's election law to proceed].

PLR:
For you law students out there, it's a very important object lesson. Like any legal opinion, Bush v. Gore can "mean" many different things; there are inevitably many different ways to characterize its "holding," and you can't tell which one is "correct" just by reading the opinion, however carefully and skillfully you do so.

Any legal opinion is inevitably subject to many interpretations?

Caveat discipulus lex.
12.23.2008 10:53am
Grover_Cleveland:
You must have missed the news that Bush v. Gore has been overturned.
12.23.2008 11:01am
Awesome-O:
But as Liptak points out, a number of recent cases have apparently disregarded this limitation and relied on the decision for a more general principles applicable to a broader range of circumstances than those presented in the original case.

Well, yeah. Even unpublished opinions that read "DANGER WILL ROBINSON! UNPUBLISHED OPINION! DANGER! DO NOT CITE! WARNING! OPINION DOES NOT MEAN ANYTHING BEYOND THIS CASE!" have value as precedent. If they don't, the court is admitting that it is arbitrary and capricious.
12.23.2008 11:08am
Dave N (mail):
I have seen Bush v. Gore even cited in capital litigation. It has become a stock argument that there is a violation of equal protection because there is no statewide standard for deciding whether to seek the death penalty.

No, this argument hasn't succeeded--not even once that I am aware of--but the anti-death penalty folks keep trotting it out with the evident hope that lightning will strike.
12.23.2008 11:35am
CJColucci:
Karl Lewellyn said the same thing before most of us were born. I don't think he thought it was news then.
12.23.2008 12:12pm
FlimFlamSam:
This is reminiscent of (I think I recall the facts properly) the remarks by the Griswold v. Connecticut majority (or was it a concurrence?) to the effect that the holding would not be enlarged by subsequent cases. Then a couple years later Roe v. Wade pops out of the Supreme womb.
12.23.2008 12:58pm
Urchin Barren:
Really? My ConLaw professor told me it meant that the Court is full of election-stealing Republicans.
12.23.2008 2:04pm
Syd Henderson (mail):
It would be fun if Al Franken wins his Senate seat by a court using Bush vs. Gore.
12.23.2008 2:05pm
Prof. S. (mail):
There's an actual opinion to Bush v. Gore? Speaking with my liberal friends, I thought they just walked in and said "everyone who thinks Bush should be president, raise your hand."

Guess it turns out that the decision really did have a legal basis and reasoning.
12.23.2008 2:07pm
Nunzio:
Bush v. Gore stands for the proposition that, in order to avoid having House Republicans declare W. President, the U.S. Supreme Court will abuse its judicial power to over-rule the Florida Supreme Court's abuse of its judicial power and declare Al Gore the loser.

Because Al Gore's a loser.
12.23.2008 2:29pm
Roger Schlafly (www):
At one time, it was commonly understood that court decisions were limited to the circumstances of the actual case or controversy being decided. Such decisions could always still be cited in other cases. If the court does not want the decision to be cited, then it issues it as an unpublished decision.
12.23.2008 3:07pm
Awesome-O:
If the court does not want the decision to be cited, then it issues it as an unpublished decision.

But "unpublished" doesn't mean "not published somewhere." As you know, unpublished opinions abound. Sure, the case can't be cited, but everyone knows what the court has done in the past, including the court, and the court strives for consistency. It's not going to go against an "unpublished" opinion if it can help it.
12.23.2008 3:14pm
hattio1:
Prof S. Says

Guess it turns out that the decision [Bush v. Gore] really did have a legal basis and reasoning.


You might want to read it before bestowing the word "reasoning" on that opinion...and that goes for the dissent as well as the majority.
12.23.2008 3:45pm
Ohismith (mail):
It was absolutely ludicrous for the Court to claim that Bush v. Gore had no precedential value. At the very least, it told the country that the S. Ct. was perfectly willing to impose its own will on the electorate, and not be bound in the future by the reasons it claimed supported the ruling.
12.23.2008 6:07pm
Roger Schlafly (www):
ludicrous for the Court to claim that Bush v. Gore had no precedential value.
The Court never claimed that. It is a published opinion, with as much precedential value as any other opinion.
12.23.2008 10:31pm
Public_Defender (mail):
You can't always control the meaning of a case. Once, language from my brief made it more or less directly into a state supreme court opinion. Months later, a prosecutor quoted that language back to a lower court at oral argument against a different client. I really couldn't say, "but that's not what I meant when I wrote it."
12.24.2008 8:05am
David Schwartz (mail):
Bush V. Gore was an unprecedented situation which no good way out. The Florida State Supreme Court had made an absolute royal mess of the situation, issuing a ruling that was never briefed on and was literally impossible to implement. There was no "right answer", and there is no larger lesson.
12.26.2008 12:21am

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