Bush v. Gore Cited for First Time by a Supreme Court Justice Since Case Decided in 2000

Josh Blackman notes this line in a footnote in Justice Thomas’s dissent: “This Court has recognized, however, that “the state legislature’s power to select the manner for appointing [presidential] electors is plenary; it may, if it chooses, select the electors itself.” Bush v. Gore, 531 U. S. 98, 104 (2000) (per curiam) (citing U. S. Const., Art. II, §1, and McPherson v. Blacker, 146 U. S. 1, 35 (1892).”


I have previously called Bush v. Gore an “unprecedent.” Because the Court made it clear that this case should not be cited to govern any other case.

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

A quick Westlaw search reveals that this is the *first* time any Justice has actually cited Bush v. Gore. A law review article by Rick Hasen with “Bush v. Gore” in the title is cited in Citizens United.

Notably, no one else joined Justice Thomas’s dissent.


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