Orin Kerr addresses the issue of whether Bush v. Gore can be used as precedent, if it declared itself not to be precedent.

It’s an amusing little theoretical question. After all, judicial opinions generally operate as precedent. Whatever the opinion says, that’s what lower courts are supposed to follow. So what should lower courts do if a court says: here’s the rule . . . but it applies only to this case?

I can sum up the conundrum with this hypothetical:

Pretend we’re playing “Simon Says.” I’m the leader, and I say:

Simon says: Follow my instructions without regard to whether I say “Simon says.”

The next thing I say is: “Touch your nose.”

Are you supposed to touch your nose?

(Only lawyers could argue about this kind of thing, huh?)

Ultimately, however, it’s a moot point, because (as Kerr notes) the language in Bush v. Gore doesn’t really say that it’s not to be used as precedent, despite the popular misconception to the contrary. What the opinion says is this:

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

Indeed. Here’s Kerr:

I wonder, though, what’s the evidence that there is something “wholly unique” about the limiting phrase in Bush v. Gore? Flanders writes that the uniqueness is that the limiting language was used “to (apparently) nullify the principle” of the opinion. But what authority supports that reading? Maybe I’m missing something, but I don’t see it in the opinion. Granted, this is a reading that some critics have taken in order to skewer the opinion; the argument is that if the Court effectively made its decision nonprecedential, then it’s further evidence that the decision was lawless. But this is a gloss made by critics, not a reading that seems to be justified by the opinion itself.

As I have noted before, there’s nothing “wholly unique” about that language. Courts often use language indicating that a holding is fact-specific. For example, the Supreme Court said in City of Cincinnati v. Discovery Network (91-1200), 507 U.S. 410 (1993):

Our holding, however, is narrow. As should be clear from the above discussion, we do not reach the question whether, given certain facts and under certain circumstances, a community might be able to justify differential treatment of commercial and noncommercial newsracks. We simply hold that on this record Cincinnati has failed to make such a showing.

As I noted in this post:

[I]f the last sentence sounds eerily familiar, it is because it anticipates similar and oft-criticized language in Bush v. Gore. Limiting a case’s holding to the facts at hand did not originate with Bush v. Gore, regardless of what Democrat partisans tell you.)

There are more examples in Kerr’s comments.

Simon says: ignore the nonsense spewed by Democrat partisans, especially when it comes to court decisions.