January 21, 2010
Got You to Say "Bush v. Gore!"
A point of personal privilege. It is with mixed feelings today that I saw Chief Justice Roberts cited my book in footnote 2 of his concurrence in Citizens United ("2. See also, e.g., R. Hasen, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore 114 (2003) ('Austin represents the first and only case [before McConnell] in which a majority of the Court accepted, in deed if not in word, the equality rationale as a permissible state interest'); Strauss, Corruption, Equality, and Campaign Finance Reform, 94 Colum. L. Rev. 1369, 1369, and n. 1 (1994) (noting that Austin's rationale was based on equalizing political speech); Ashdown, Controlling Campaign Spending and the 'New Corruption': Waiting for the Court, 44 Vand. L. Rev. 767, 781(1991); Eule, Promoting Speaker Diversity: Austin and Metro Broadcasting, 1990 S. Ct. Rev. 105, 108–111.").
It is of course a great honor to be cited by the Supreme Court, though bittersweet when cited in an opinion with which one disagrees. But I do believe this marks the first time that the words "Bush v. Gore" have appeared in any Supreme Court opinion or order since that case was resolved in 2000.