New York Times legal writer Adam Liptak has a column Tuesday titled "Bush v. Gore Set to Outlast Its Beneficiary." Contrary to partisan liberal wisdom, it seems that the Supreme Court’s ruling to break the Florida logjam in the 2000 presidential race is hardening into a usable precedent and losing its place in the annals of infamy. The Times even allows a legal expert to accuse liberals of overreacting about it:
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."
Liptak writes that in its current usage, what really matters is that the Supreme Court is still the first authoritative place for precedents, citing a recent decision in the Sixth Circuit Court:
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.”