In Nelson Lund's posting
on Toobin
that I linked to the other day, he writes
Toobin suggests that there is something sinister in the
fact that the Supreme Court has not yet cited Bush v. Gore
in another case. Bush v. Gore simply applied
well-established equal protection principles to invalidate a
stunning and anomalous departure from those principles by the
Florida Supreme Court. Nothing in the Bush v. Gore opinion
suggests that its principles would be inapplicable in other cases,
and there would hardly be an occasion to cite it unless some lower
court again departed from those principles. Not surprisingly, Bush
v. Gore is frequently cited by the lower courts, which
evidently understand that it is indeed a precedent that they are
required to respect.
Here's my query: Aside from Bush v. Gore, can anyone come
up with an example of a Supreme Court case in the last few decades
(aside from very recent cases, which naturally won't have been cited
because they are too new) that the Court has not cited at all
for any proposition?
(Also, on Lund's point that there's been hardly an occasion for the
Court to cite the case, here's fn. 76 of my "Margin of Litigation"
piece: "76. Chief Justice Rehnquist did not even cite his concurring
opinion in Bush v. Gore in his dissent from the denial of a writ of
certiorari in Colorado General Assembly v. Salazar, 541 U.S. 1093
(2004). Salazar considered the Colorado Supreme Court’s power to
prevent the state legislature from enacting a mid-decade
redistricting. Id. at 1093. It concerned questions of state court
power over state legislative decisions that exactly paralleled the
Article II argument the Chief Justice, joined by Justices Scalia and
Thomas, endorsed in his concurring opinion in Bush v. Gore. Justices
Scalia and Thomas joined the Chief Justice in the Salazar dissent as
well. Id.")
77.
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org