The Unprecedent

April 4th, 2013

In Bush v. Gore, the Supreme Court per curiam made it clear that this precedent was not meant to govern other cases:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Likewise, in Dames & More v. Regan, authored by Justice Rehnquist (the likely author of the Bush v. Gore PC opinion) the Court stressed that the opinion would only control the present circumstances:

We attempt to lay down no general “guidelines” covering other situations not involved here, and attempt to confine the opinion only to the very questions necessary to decision of the case.

I have previously referred to such opinions as an “Unprecedent,” touching on this article on the President’s war powers. It is not a precedent, and the Court does not want it cited elsewhere. The logic of this opinion only happens once. These opinions seem to emerge when the Court is called on to resolve a controversial issue quickly, and it is an issue unlikely to repeat. There are many others like this when certain border-line political questions are present. At some point, I’ll write about the Unprecedent, not to be confused with Unprecedented.

Of course, even if the court calls something an Unprecedent, lower courts still cite it (citations to Bush v. Gore, Dames & More, and other cases are common). Hell, even attorneys are citing Bush v. Gore to the Kenya Supreme Court:

Ahmednasir Abdullahi told Kenya’s highest court Thursday it should adhere to judicial restraint and uphold the March 4 result from Kenya’s election commission showing that Uhuru Kenyatta won with 50.07 percent of the March 4 vote.

Prime Minister Raila Odinga, the runner-up with 43 percent, and civil society groups are asking the court to order a new election because it wasn’t free and fair. The court is expected to rule by Saturday.

Abdullahi quoted U.S. Supreme Court justice Stephen Breyer, who wrote after hearing the 2000 case that decided that U.S. presidential election, that the appearance of a split court on a highly politicized case risks undermining public confidence in the court.