Well, just starting with the October 2000 term in chronilogical order, it took me up to a case heard on Oct. 4, decided Feb. 28, 2001, Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), which has never been cited except in dissent, unless we count this cite from one majority opinion in 2003: "Appellees mistakenly contend, in reliance on Legal Services Corporation v. Velazquez, 531 U.S. 533, 149 L. Ed. 2d 63, 121 S. Ct. 1043 (2001),... "
Hardly exhaustive, and of course, Bush v. Gore hasn't been cited in dissents, either.
Then on Oct. 11, 2000, the Court heard Brentwood Academy v. Tenn. Secondary School Athletic Assn, 531 U.S. 288 (also decided in Feb. 2001). That case has never been cited for any proposition in the Supreme Court, except for Tenn. Secondary School Athletic Assn. v. Brentwood Academy, 551 U.S. 291 (2007), which, as the name implies, is the same case, back for a second round.
I stopped here. Again, not quite perfect, but given that finding these two cases this took me one week into the Court's Oct. 2000 term (which I chose as a starting point, of couse, because that's the term of Bush v. Gore), it suggests to me that the lack of citation is not that stunning, though probably relatively rare.
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