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View Diary: MONTANA!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! (288 comments)

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  •  Kennedy may see a difference. Maybe Thomas, too. (1+ / 0-)
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    TofG

    Kennedy's really prone to seeing distinctions where a lot of other jurists (both conservative and liberal) wouldn't. He wouldn't have to reject Citizens United; he could distinguish this case. I am inclined to think he might see the difference and resolve it on the state level that corps CAN spend as much as they want.

    In some opinions, usually writing only for himself, Thomas is into states' rights to the point of being completely impractical. If he wasn't such a partisan hack, I could see his jurisprudence allowing for a difference on the state level here. Mind you, I don't think he'd actually join an opinion in Montana's favor, though; I am pretty convinced of his partisan hackery. But... it's interesting to think about. This could be a rare chance for Thomas to write an opinion of some import that makes a difference  (or concurrence in the judgement if the liberals dislike his reasoning sufficiently to forgo the chance at a binding limit to Citizens United, but I think the liberals would want a real majority limiting CU). Thomas hasn't written a single majority constitutional law of any import that I can recall - which might grate on him, since he has such an, ahem, distinct approach to constitutional law. So he might find that appealing. But I honestly don't know much about his psychology because nobody thinks or talks much about it because it usually doesn't matter.

    I agree that Roberts, Scalia, and Alito would just deny cert on this  - they'll probably think that Citizens United obviously controls. I don't know that much about Alito's tendencies to deviate from the conservative party line besides him being sensitive to sob stories (consider his Snyder dissent (the funeral protest case) and his dissent in the animal cruelty speech exception case). Unless he has some other quirk I'm not aware of, he's in the same camp as Roberts and Scalia.

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