I thought I had a winner in NY City Board of Estimate v. Morris, 489 US 688 (1989), but it managed to eke out one citation, one year later, by the Supreme Court, albeit merely a "cf" cite.  Missouri v. Jenkins, 495 US 33, 55 (1990).  Since then, radio silence by the Court.

-----Original Message-----
From: election-law-bounces@mailman.lls.edu on behalf of Rick Hasen
Sent: Fri 12/3/2010 7:07 PM
To: Election Law
Subject: [EL] query re Bush v. Gore and Supreme Court precedent

In Nelson Lund's posting <http://www.nationalreview.com/bench-memos/254320/jeffrey-toobin-s-shoddy-attack-ibush-v-gorei-nelson-lund>  on Toobin <http://www.newyorker.com/talk/comment/2010/12/06/101206taco_talk_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
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