What Didn’t Happen Today?

The Supreme Court issued an order today granting cert. in two cases likely to be heard later this term.  But we heard nothing about the pending Bluman v. FEC case (the subject of this Room for Debate forum and a recent oped of mine in The New Republic online), about the constitutionality of the ban on foreigners’ contributions and spending in U.S. election campaigns.  If the Court were going to hear the case this term, I expect we would have heard something today.

The Court will release additional orders Monday.  It is possible that the Court will summarily affirm at that time, but maybe not.  If one or more Justices wants to write a statement in dissent, etc., that could delay things.  And one further caveat: if memory serves, the Court relisted the LULAC case (involving the last round of Texas redistricting) five times before voting to hear the case.  The Court could therefore eventually agree to to hear the case, but given the timing it could be next term.

LULAC, like Bluman, came from a three-judge court, and I have long argued that the three-judge court procedure makes the Court consider much more seriously whether or not to hear these cases.  In great part that is because a decision not to hear a case coming on appeal from a three-judge court gives that lower court case precedential value.  (This also may provide a strategy for getting the Court to consider overturning section 5 of the Voting Rights Act on the fast track.)

I’m still betting on the summary affirmance in Bluman, with dissents.

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