Posted by David Post: Bush v. Gore, and The Meaning of Cases: http://volokh.com/archives/archive_2008_12_21-2008_12_27.shtml#1230046408
Adam Liptak has [1]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 [2]its recent ruling allowing the challenge to Ohio's election law to proceed]. References 1. http://www.nytimes.com/2008/12/23/us/23bar.html?_r=1&ref=us 2. http://moritzlaw.osu.edu/electionlaw/litigation/documents/6thCircuitOpinionLWVvBrunner.pdf
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