Bush v. Gore

Haven't yet figured out the link thing. Here are excerpts from an editorial on Bush v. Gore. That the case hasn't been cited isn't quite true---see Max Huffman, Judge Painter's Forty Rules, 72 U. Cin. L. Rev. 1011, 1014 n.24 (2004) (arguing that "sometimes wholly senseless legal propositions are accepted by (even the highest) courts and become law")---but it has apparently fallen into disuse. Anybody else?

Editorial Observer> Has Bush v. Gore Become the Case That Must Not Be Named?>

By Adam Cohen

> At a law school Supreme Court conference that I attended last fall, > there was a panel on "The Rehnquist Court." No one mentioned Bush v.> Gore . . . . When I asked > a prominent law professor about this strange omission, he told me he > had been invited to participate in another Rehnquist retrospective, > and was told in advance that Bush v. Gore would not be discussed.>

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The Supreme > Court has not cited it once since it was decided, and when Justice > Antonin Scalia, who loves to hold forth on court precedents, was asked > about it at a forum earlier this year, he snapped, "Come on, get over > it.">

There is a legal argument for pushing Bush v.> Gore aside. The majority> opinion announced that the ruling was "limited to the present > circumstances" and could not be cited as precedent. But many legal > scholars insisted at the time that this assertion was itself dictum - > the part of a legal opinion that is nonbinding> - and illegitimate,> because under the doctrine of stare decisis, courts cannot make > rulings whose reasoning applies only to a single case.>

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There are several problems with trying to airbrush Bush v. Gore from > the law. It undermines the courts' legitimacy when they depart sharply > from the rules of precedent, and it gives support to those who have > said that Bush v. Gore was not a legal decision but a raw assertion of > power.> The courts should also stand by Bush v. Gore's equal protection > analysis for the simple reason that it was right (even if the remedy > of stopping the recount was not). Elections that systematically make > it less likely that some voters will get to cast a vote that is > counted are a denial of equal protection of the law.

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.> There is a final reason Bush v. Gore should survive. In deciding > cases, courts should be attentive not only to the Constitution and > other laws, but to whether they are acting in ways that promote an > overall sense of justice. The Supreme Court's highly partisan > resolution of the 2000 election was a severe blow to American > democracy, and to the court's own standing. The courts could start to > undo the damage by deciding that, rather than disappearing down the > memory hole, Bush v. Gore will stand for the principle that elections > need to be as fair as we can possibly make them.

((** Moose: Here's a link to the full article. **)