Cross posted from Article of Faith:
Judicial conferences on the Rhenquist Court’s legacy refuse to discuss it, the “Supreme Court has not cited it once since it was decided, and when Justice Antonin Scalia, who loves to hold forth on court precedents, was asked about it at a forum earlier this year, he snapped, “Come on, get over it.”
As Cohen notes, the fact that the Court’s majority opinion ruled their decision was “limited to the present circumstances” and “could not be cited as precedent” has added another layer of illegitimacy to the ruling, as several cases have come before lower courts addressing the very same issues which were addressed in Bush v. Gore.
Why another layer of illegitimacy? “Because under the doctrine of stare decisis, courts cannot make rulings whose reasoning applies only to a single case. If [the court’s] equal protection principle is taken seriously, if it was not just a pretext to put a preferred candidate in the White House, it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted – precisely the system that exists across the country right now.”
The problem is that there are several cases in front of lower courts, most notably a case in Ohio, where plaintiffs are arguing voter inequality and using the disaster from the 2004 election as evidence. Most of the lower courts have refused to allow Bush v. Gore’s central holding on equal protection, which Cohen notes was correct “even if the remedy of stopping the recount was not”, to be introduced.
“The Supreme Court’s highly partisan resolution of the 2000 election was a severe blow to American democracy, and to the court’s own standing.” Trying to eliminate the decision and pretend it never happened “undermines the courts’ legitimacy when they depart sharply from the rules of precedent, and it gives support to those who have said that Bush v. Gore was not a legal decision but a raw assertion of power.”
With elections only a few months away, and a presidential election in just two years, the quest for voting equality must continue, whether the courts wants to acknowledge the legal embarrassment of Bush v. Gore or not.