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View Diary: Five Montana Supreme Court justices vs. Citizens United (65 comments)

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  •  But could it be partially affirmed? (3+ / 0-)

    This is a serious question. Citizens United did not address spending in judicial elections, and one of the many unsatisfying aspects of the majority opinion was Kennedy trying to explain away his Caperton opinion in which he equated independent expenditures with contributions and said that the appearances from that spending were enough to require recusal of the justice in question. And one of the more solid parts of the Montana opinion, to me, is its argument that independent spending on judicial elections is different - the state has a compelling interest in avoiding the kind of appearances that were a problem in Caperton. They even threw in a good quote from Justice O'Connor for good measure.

    So, any chance Kennedy or someone else flips to be a fifth vote to uphold independent spending restrictions in judicial elections? I would say yes, and that is potentially the most interesting thing to come out of the case. In fact, to me it makes a 9-0 summary reversal highly unlikely.

    •  Fair question (1+ / 0-)
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      I think that Caperton points to a path for case-by-case recusal obligations for justices based on independent spending by litigants, which is a solution which is more consonant with the First Amendment than not allowing such speech at all.

    •  I chuckled reading the FL Supremes' 12/8/00 (5+ / 0-)

      opinion allowing Gore to continue the recount.  At that moment, I (naively) assumed that, by cloaking their decision in state law, they made it bulletproof from reversal by the SCOTUS.*  5 Supremes educated me differently the next day when they issued a stay that operated as a decision on the merits.

      3 of the 5 Supremes who issued that odious pair of rulings on 12/9/00 and 12/12/00 are still on the Court, and the 2 who replaced them are of like mind.  While I suspect that the other 4 may uphold the MT decision, there clearly are 5 votes for reversal here.

      *The subsequent Ginsburg dissent in B v. G cited a law review article that then AZ appellate judge O'Connor wrote favoring federal judicial deference to state court decisions, but her point fell upon deaf ears.

      Some men see things as they are and ask why. I dream of things that never were and ask why not?

      by RFK Lives on Wed Jan 04, 2012 at 09:05:07 AM PST

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      •  And the funny thing (2+ / 0-)
        Recommended by:
        RFK Lives, phonegery

        about that is that the Florida Supreme Court wasn't just "cloaking" their decision in state law, they were basing their decision in state law.

        •  Florida had until mid December, according (0+ / 0-)

          to past precedent, to turn in its verified count.  The fed court gave them less than a week.  It was  impossible to finish the recount given the short time limit, and the supreme court knew it.  

          Democrats - We represent America!

          by phonegery on Wed Jan 04, 2012 at 12:46:23 PM PST

          [ Parent ]

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