Bench Memos

NRO’s home for judicial news and analysis.

Linda Greenhouse’s Casual Wild Falsehood About Bush v. Gore


In the course of her latest commentary, Linda Greenhouse writes:

In Bush v. Gore, the five most conservative justices, no great fans of an expansive reading of the Equal Protection Clause, surprised the world in 2000 by declaring that the Florida Supreme Court’s recount order violated equal protection in failing to assure uniform vote-counting standards across the state. The five were then so abashed at having invoked the Equal Protection Clause to stop the recount, and so afraid of inadvertently unleashing a new equal protection revolution, that they proclaimed that their opinion was never to be cited in any future case. [Emphasis added.]

Similar if milder claims have been made so frequently on the Left that the trusting reader might think that there was something to them. In fact, the entirely innocuous passage in Bush v. Gore on which Greenhouse’s massive distortion rests is:

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

In short, the majority warned against overreading its reasoning and misapplying it to different circumstances, but the justices nowhere “proclaimed that their opinion was never to be cited in any future case.”


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