Writing on the Legal Theory Blog, Larry Solum has posted Hasen on the Sixth Circuit on Hasen on Bush v. Gore and the Theory of Horizontal Stare Decisis. Within this jurisprudential tour de force is this conclusion:

So how does all of this apply to Bush v. Gore and Hasen’s view that the decision is likely to be confined to its facts? I think it exposes a certain tension or contradiction within the prevailing legal conception of constitutional stare decisis. On the one hand, the doctrine of vertical stare decisis is formalist: Supreme Court decisions are binding on the lower courts. On the other hand, horizontal stare decisis within the Supreme Court is realist–the court does not consider itself bound by its own prior decisions and yet feels free to issue legislative holdings that purport to establish binding rules. This puts lower courts in a bit of a bind. On the one hand, they are required to follow Bush v. Gore, to treat it as a binding decision of the Supreme Court. On the other hand, the lower courts know that Bush v. Gore may not be treated as a binding decision by the Supreme Court itself and hence that (in some sense) the decision does not make law except in the narrow sense of “law of the case” on remand. So what the lower courts to do? Either they ignore Bush v. Gore in contravention of their duty to treat Supreme Court decisions as binding, or they follow it, and make decisions that in reality will be out of sync with the law in some larger and more realistic sense. To me, it is not surprising that the Sixth Circuit panel was split and that the disagreement was heated. That’s simply a symptom of corrupting influence of realism on the Supreme Court’s doctrine of horizontal stare decisis.