Tuesday, December 23, 2008


The Law of Unintended Consequences: Bush v. Gore set to be The Legacy of Rhenquist, Scalia, Thomas, O'Connor and Kennedy.

December 23, 2008
Bush v. Gore Set to Outlast Its Beneficiary


The Supreme Court’s decision in Bush v. Gore, issued eight years ago this month, was widely understood to work like that tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct.

“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.”

That sentence, translated from high legal jargon into English, was often taken to mean this: The decision was a ticket for one ride only. It was not a precedent. It was a ruling, yes, but it was not law.

But now, as the petitioner leaves the national stage, Bush v. Gore is turning out to have lasting value after all. “You’re starting to see courts invoke it,” said Samuel Issacharoff, a law professor at New York University, “and you’re starting to see briefs cite it.”

Divorced from its earlier context, the growing point of the case is to impose order on often chaotic election processes in the states.

“Bush v. Gore introduced an important idea,” Professor Issacharoff said. “It is that the political process has rules, the rules have to be fairly applied and that those rules need to be known up front.”

Bush v. Gore was, for instance, unapologetically at the heart of a unanimous decision last month from the United States Court of Appeals for the Sixth Circuit, in Cincinnati, allowing a comprehensive challenge to Ohio voting systems to move forward. The three-judge panel acknowledged the Supreme Court’s admonition about the limited precedential value of Bush v. Gore. Nonetheless, the panel said, “we find it relevant here.”

What Bush v. Gore means, the panel said, quoting from the decision itself, is 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.” Forcing people in some parts of the state to wait many hours to vote as a consequence of the arbitrary allocation of voting machines, for instance, would violate the core principle in Bush v. Gore, the panel said.

It is possible, of course, to read Bush v. Gore more narrowly than that. The case did, after all, emerge from authentically peculiar circumstances. It may be that the decision means only something like this: 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.

But even versions of that narrower reading are turning out to have a practical impact.

Bush v. Gore was front and center in the briefs and arguments last week in the Minnesota Supreme Court’s consideration of the recount litigation in the Senate race between Norm Coleman and Al Franken. The candidates’ briefs cited the case some 20 times, arguing in earnest detail about how the Supreme Court’s understanding of the role of equal protection in election administration applied in Minnesota.

“Bush v. Gore has a future,” said Edward B. Foley, an election-law specialist at Ohio State. “We’re now starting to see it. There is a sense, eight years later, that some of the initial reaction was an overreaction.”

In the early days, of course, the case was mocked as illegitimate in both its reasoning and its result. “That was so completely the prevailing wisdom” in the law schools, Professor Issacharoff said, “that there were even challenges as to whether Bush v. Gore could be taught as a serious case.”

Many judges flatly refused to consider the decision as precedent for anything, relying on the Supreme Court’s admonition and a more general unease. No Supreme Court opinion, including concurrences and dissents, has ever cited Bush v. Gore.

“It hasn’t been cited even in cases where it should have been cited,” said Richard L. Hasen, who teaches election law at Loyola Law School in Los Angeles and is the author of “The Untimely Death of Bush v. Gore,” published last year in The Stanford Law Review. “The case is radioactive. Anyone who touches it knows he’s playing with something very dangerous.”

Indeed, when the Ninth Circuit cited the case in March 2001, it was to justify its own assertion that one of its rulings was “valid only in this case.”

But the law is ordinarily understood as a system of neutral principles consistently applied. “To provide a reason for a decision,” Frederick Schauer wrote in The Stanford Law Review in 1995, “is to include that decision within a principle of greater generality than the decision itself.”

To be sure, courts sometimes limit earlier decisions to their facts, which robs them of precedential force and essentially overrules them. But what the Supreme Court did in Bush v. Gore was “historically unique,” Chad Flanders wrote in The Yale Law Journal last year. “No other majority in the history of the court,” Mr. Flanders wrote, “has applied limiting language to the very case being decided.”

Other scholars say the court’s admonition was a routine caution that the decision, issued very quickly, should be read narrowly, not that it should be ignored entirely.

Until the recent Sixth Circuit decision, the most important invocation of Bush v. Gore by a federal appeals court probably came in a 2006 case decided by a different panel of the same court. The decision was later vacated as moot by the full court, but the testy interaction of the panel’s judges remains instructive.

The dissenting judge on the three-judge panel criticized his colleagues for relying on “the Supreme Court’s murky decision in Bush v. Gore” in a case about the use of punch-card ballots in Ohio. The judge, Ronald Lee Gilman, pointed to the one-ride-only language and what he called the Supreme Court majority’s ideological inconsistency and lack of intellectual seriousness.

The judges in the majority were having none of that. “Murky, transparent, illegitimate, right, wrong, big, tall, short or small,” they wrote, “regardless of the adjective one might use to describe the decision, the proper noun that precedes it — ‘Supreme Court’ — carries more weight with us.”

“Whatever else Bush v. Gore may be,” Judge Boyce F. Martin Jr. wrote for the majority, “it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it.”


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