Bush v. Gore Set to Outlast Its Beneficiary

[last_texas_dem]

by Adam Liptak: New York Times

>>>>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.”>>>> snip

>>>>“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.”>>>> snip

>>>>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.”>>>>

http://www.nytimes.com/2008/12/23/us/23bar.html?partner=rss&emc=rss