Bush v. Gore and the uses of "limiting".

• Author: Flanders, Chad

Following the Supreme Court's decision in Bush v. Gore, (1) the controversial case that decided the 2000 election, many scholars debated the meaning of the Court's explicit admonition that its "consideration was limited to the present circumstances." (2) The academic discussion of Bush v. Gore's precedential value has since receded into the background. As the recent Sixth Circuit voting rights case of Stewart v. Blackwell (3) makes clear, however, the practical issue of whether lower courts must follow Bush v. Gore--or whether the decision was only good for the particular facts of that case--seems unlikely to disappear any time soon. (4)

In Stewart, the majority and the dissent disagreed not only about how the Court's jurisprudence should be interpreted, but also about whether Bush v. Gore should be treated as precedent at all. Stewart concerned disparities in Ohio's voting technology--for example, voters who lived in counties with the latest optical scan technology were notified if they had made any errors in their ballots, while those who used punch-card ballots or older scanners were not. (5) The court held that Ohio had violated the Equal Protection Clause by failing to utilize uniform voting technologies across the state. (6) The case has now been declared moot at the plaintiffs' request, (7) but the theoretical debate at the heart of Stewart remains fundamentally unsettled.

In support of its holding, the Stewart majority relied on Bush v. Gore extensively--quoting, citing, or mentioning the case more than twenty times. (8) Judge Gilman, dissenting, sharply criticized this reliance. Bush v. Gore, Gilman wrote, had provided clear instructions on its own use as precedent that required "limit[ing] the reach of Bush v. Gore to the peculiar and extraordinary facts of the case." (9) The Supreme Court had given an "explicit admonition" (10) to this effect. The Stewart majority's reply was straightforward: "Respectfully, the Supreme Court does not issue non-precedential opinions." (11) Noting its status as an inferior court, one that did not have "the luxury or the power to decide which Supreme Court decisions ... to follow," (12) the majority stated that it could not ignore "the Supreme Court's murky decision in Bush v. Gore." (13)

This Comment does not take a position on the merits of Bush v. Gore but merely asks what the Court was doing when it limited its consideration "to the present circumstances." Scholars have debated whether the language was innocuous, indicating that the principle deciding Bush v. Gore was to be narrowly applied (as the Stewart majority assumed), or whether the Court was intentionally limiting the application of the equal protection rationale to only one case (as the Stewart dissent urged). (14) This Comment looks to the Court's past use of limiting language to try to resolve this debate.

There are, in fact, several varieties of limiting language. The Court has used such language to narrow the scope of a principle that has been used to decide a case, to nullify a principle that has decided a previous case, or to persuade a future Court not to extend a ruling past the facts of the case being decided. But Bush v. Gore's uniqueness is that it limited the case being decided "to the present circumstances," apparently using a principle to decide a case and then nullifying that principle in the very same case. When limiting is used to nullify (rather than to narrow) the principle in a case, it traditionally has been used to nullify the principle of a case that has already been decided. Bush v. Gore, I demonstrate, is the sole exception to this rule.

1. LIMITING AS NARROWING

   I begin by noting two kinds of limiting language that the Court has used to announce that the principle behind a case is merely narrow, rather than applicable only to the facts of a single case. When the Court decides a case and offers reasons for its decisions, the very act of giving reasons will suggest that the same reasons could be applied to similar circumstances. As Frederick Schauer has put the point, "[O]rdinarily, to provide a reason for a decision is to include that decision within a principle of greater generality than the decision itself." (15)

   On some occasions the Court explicitly limits the scope of the principle behind a case, without denying that the principle remains applicable to other circumstances. The Court can do this through one of two devices: it can state that a previous case is "limited by its facts," or it can describe a previous case as having a "limited holding." With these types of language, the Court draws attention to the specific facts of the case and warns that the principle applied should not be interpreted to extend very broadly. Both uses of limiting language are, in the classic sense, minimalist. (16)

   First, the Court may write that the "general language" of a previous opinion "must be construed and limited by the facts of the case" (17) or that "[t]he implications of this case are limited by the facts." (18) The point here is to caution against an overbroad reading of the opinion rather than to deny that the opinion has an application outside that particular case. The use of "limited by" serves as a caveat and not as an absolute bar to future application of the case. (19) That a case is "limited by its facts" does not mean that its application is limited only to those facts, as the Court's language in Hudson v. Palmer suggests: "While Parratt [v. Taylor] is necessarily limited by its facts to negligent deprivations of property, it is evident ... that its reasoning applies as well to intentional deprivations of property." (20)

   Second, a later Court may say that an earlier Court has "limited its holding" to a certain set of circumstances. This use of limiting language again narrows, rather than nullifies, the decision. The Court's goal is to limit the applicability of the principle of a...