The Road to Bush v. Gore: The History of the Supreme Court’s Use of the Per Curiam Opinion

60 Pages Posted: 4 Dec 2011

See all articles by Laura Ray

Laura Ray

Widener University - Delaware Law School

Date Written: 2000

Abstract

The Supreme Court per curiam opinion, which proclaims itself the collaborative product of all the Justices in supporting an outcome, was first used in 1862 as an efficient way of resolving such routine matters as dismissals for lack of jurisdiction and motion decisions. Starting in the 1930s, as the Roosevelt Court Justices increasingly exercised their prerogative to author dissenting and concurring opinions, even per curiams started to appear with dissents attached. Thereafter the Court began experimenting with the per curiam as a useful form for some of its more challenging cases, including such major decisions as Ex Parte Quirin and the desegregation decisions that applied Brown v. Board of Education to other settings. More recently, the Court has used the per curiam as an effective way to deal with a change of authorship in Brandenburg v. Ohio, a need for haste in New York Times Co. v. United States, and a strongly splintered Court in Furman v. Georgia. The release of a 138 page per curiam in Buckley v. Valeo in 1976 completed its transformation from an indicator of an unimportant case to a strategic device capable of resolving a complicated and divisive issue. The per curiam made its most dramatic appearance in Bush v. Palm Beach County Canvassing Board, where the Court employed it to depersonalize its response to the Florida Supreme Court's controversial decision and to present itself as an institution above politics and personal preference.

Keywords: Supreme Court, per curiam opinion, courts, judges, opinions

JEL Classification: K1

Suggested Citation

Ray, Laura, The Road to Bush v. Gore: The History of the Supreme Court’s Use of the Per Curiam Opinion (2000). Nebraska Law Review, Vol. 79, p. 518, 2000, Available at SSRN: https://ssrn.com/abstract=1967661

Laura Ray (Contact Author)

Widener University - Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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