In other words, the opinion strongly suggests that review is going to be granted and that if the state has a real chance at prevailing in the U.S. Supreme Court, it is not going to be at the margins by attempting to distinguish Citizens United (which is what the state supreme court attempted to do) or by debating how the law affects these particular petitioners. Instead, it is going to be in a nearly frontal assault on the Court’s prior decisions, an assault that rests on very clear and specific data about how the Court’s campaign finance jurisprudence is supposedly distorting American elections….
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.)
This is the extremely unusual circumstance in which Montana as respondent desperately needs amicus support at the cert. stage. The conventional wisdom is that cert.-stage, respondent-side amici are counterproductive because they just draw more attention to the case. But this case is under the spotlight already. What Montana needs is significant arguments from respected amici that the Court should grant plenary review. Most important would be if the Solicitor General filed an unsolicited amicus brief expressing the Obama Administration’s position that Citizens United should be reconsidered. Also significant would be amicus briefs from states seeking to defend their campaign finance laws. But on the whole, the goal should be to establish the foundation for a serious discussion of whether to reverse course in the Court’s campaign finance jurisprudence.
This is one where you really need to read the whole thing.
My own additional thoughts on Montana will appear soon.