Skip to main content

Montana
Following up on Meteor Blades' diary on Thursday, the Supreme Court of the United States did not, in fact, grant a writ of certiorari today in American Tradition Partnership v. Bullock, the appeal of the Montana Supreme Court decision finding Citizens United inapplicable given the state's history of corporate corruption in electoral politics.  

The case, now fully briefed as to whether cert was warranted, was teed up for discussion at last Thursday's conference of the justices, and based on the Court's normal schedule if cert was being granted, it would have been announced today. It wasn't. And so many (including me) assumed it meant that the majority behind Citizens United just wanted to reverse the Montana decision without additional argument, and that the dissenting justices needed additional time to write an opinion explaining why the case should have been heard.

Turns out, it's not that either. Instead, the Court's docket confirms the matter has been relisted for this Thursday's conference, meaning that they're still not sure what to do with it. As Tom Goldstein has noted, summary reversal is extremely atypical in cases like this:

[S]ummary reversal would be an extreme remedy.  As a matter of comity, the Court’s near-uniform practice when it reviews a case in this posture – viz., a merits decision holding that a statute does not violate the Constitution – has been to show the states and their courts the respect of plenary review.

I think that it will be very close question whether five members of the Citizens United majority all conclude that the Montana Supreme Court’s ruling is so outrageous that the decision should be summarily reversed.  (Note the wisdom (from the perspective of the dissenters) in the votes of Justices Ginsburg and Breyer on the stay application:  they point the Court towards plenary review to consider the merits of the state’s arguments for limiting or overruling Citizens United, rather than simply dissenting and treating the case as another five-to-four fait accompli that would be more likely to generate a summary reversal.)

So expect more news on this case next Monday. But regardless of what the Court does, or when it does it, I strongly anticipate the Montana law barring corporate expenditures in state and local elections will remain stayed throughout this year's election cycle.

The Court did issue four opinions today, two of which deal with Native American matters, plus one on the Confrontation Clause I'll brief later today. Welcome to my busy season.

1:34 PM PT: Prof. Rick Hasen suggests that the relisting doesn't mean the Court doesn't know what to do yet, but that it also would be the Court's procedure if they have already decided to enter a summary reversal, with the dissenters still in the process of writing the dissent, and that the matter will continue to be relisted until they're done.

Originally posted to Adam B on Mon Jun 18, 2012 at 08:23 AM PDT.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics and Daily Kos.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site