In the Yale Law Journal Pocket Part, Yale Law student Chad Flanders has a very interesting post on whether Bush v. Gore has precedential value. He writes specifically on the phrase in the majority opinion limiting its scope, in which the Court wrote:

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

  (emphasis added)

  Does the italicized sentence mean that the Bush v. Gore opinion is functionally nonprecedential? Flanders writes:

[T]he use of the familiar device of "limiting a case to its facts" in Bush v. Gore has a significance that has been almost universally missed in the flood of commentary on the case. When the Supreme Court limits a case to its facts, it is on the way to overruling it, by nullifying the principle that decided the case. Thus, in an entirely typical use of the phrase, Justice Thomas wrote in M.L.B. v. S.L.J. that "[e]ven if the Griffin line [of cases] was sound, Mayer was an unjustified extension that should be limited to its facts, if not overruled." Sometimes a concurring Justice will say that the majority opinion was limited to its facts as a way of expressing a disagreement with the principle of the majority, even though the Justice agreed with the result. But Bush v. Gore is wholly unique in using limiting language to (apparently) nullify the principle of an opinion, not in a concurrence to the opinion, but in the majority opinion of the very case. It is no wonder that Bush v. Gore has caused such confusion in the lower courts. It is as if the Supreme Court had written an opinion, and then, in a bow to René Magritte, put as its last sentence: "This is not an opinion." What is a lower court to do?

  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.

  To be clear, I am not defending Bush v. Gore; I find the per curiam opinion highly unpersuasive. However, it seems to me that the limiting phrase in that case is no different from limiting phrases in lots of other Supreme Court majority opinions. The Supreme Court often makes case-by-case decisions, in which it announces an outcome for the present circumstances without indicating how far it might take that reasoning in other cases. But this isn't a sign that the Court is on the road to overruling anything; whether it's justified or not, this is a relatively routine type of minimalist move. As a result, it seems to me that the question of whether Bush v. Gore has any precedential effect is relatively easy to answer: like other decisions with similar limiting language, the case has precedential value on its facts with uncertain influence once you wander from those facts.

  Thanks to PrawfsBlawg for the link.