Bush v. Gore lives, as it should.

As the New York Times observes today, one of the most controversial parts of the Supreme Court’s 2000 decision in Bush v. Gore was the Court’s pronouncement that the decision would have no precedential effect: “”Our consideration is limited to the present circumstances,” the majority famously said, “for the problem of equal protection in election processes generally presents many complexities.”

In our legal system, courts are bound to follow decisions of, among others, the Supreme Court.  The principle, known as stare decisis, is fundamental to the common law system we adopted from England.  The Supreme Court in Bush v. Gore, therefore, was stating that for that case only, stare decisis would not apply.

Why did the Court make this unprecedented pronouncement?  Many believe it was because the equal protection grounds supporting the Court’s decision, if applied in future cases, would open the doors to lawsuits that never before had been considered viable.  The requirement of equal protection of the law is, to put it mildly, a complicated subject.  Quite plainly, the law makes legitimate discriminations between groups every day.  Accordingly, a legitimate claim that a law denies equal protection requires some sort of reasonable belief that the law might have been enacted to discriminate on illegitimate grounds.

The Supreme Court in Bush v. Gore had no reason at all to believe that the Florida Supreme Court’s recount order it was reviewing had been intended to give greater weight to one preferred class of voters over another.  Thus, the Supreme Court did not want the equal protection principles it was applying to supply legal arguments in future cases it was not prepared to hear — I seriously doubt, for example, that a state’s decision to locate most of its waste disposal facilities in areas that are predominately populated by minorities or the rural poor would satisfy any existing equal protection analysis.  But if Bush v. Gore‘s reasoning does apply, who knows?

The New York Times observes that despite the Supreme Court’s proclamation, courts are beginning to apply the reasoning of Bush v. Gore. That in itself is interesting.  What I find more interesting is that there was not more outrage on the point at the time.  Stare decisis is generally understood to control courts by limiting their rulings to the principles enunciated in earlier decisions.

But stare decisis also provides a control over the court that makes a decision.  If its decision is baseless, later courts will say so and overrule it.  The Supreme Court could not face later courts, or even a later incarnation of itself, declaring that the equal protection principles applied in Bush v. Gore were baseless.  Accordingly, it tried to declare that any future consideration of whether they were baseless was off limits.

Right wingers often, and falsely, declare that liberal judges are activists who make law and conservative judges merely apply the law as it exists.  But I can think of no more “activist” decision than Bush v. Gore, where the Court tried to declare “this is the law for this case, and something else will be the law for another case.”