November 29, 2009

When Will We See an Opinion in Citizens United?

This weekend AP moved a story beginning: "For the first time under Chief Justice John Roberts, the Supreme Court failed to issue opinions before Thanksgiving in any of the cases that were argued in recent months."

The article also noted that Citizens United, reargued in early September after no decision was reached last term, also has not yet been decided.

I had predicted an opinion in CU by mid-November, by looking at how much time it took to decide the 2003 McConnell case. That case was argued in early September as well, and an opinion issued in early December. McConnell, however, was a much more complicated case (measured by the number of issues the Court had to decide), so I figured I could shave a few weeks off the last timetable. I also expected the Court to move quickly because the statute vesting the Supreme Court with appellate jurisdiction of these appeals requires expedition of decision, and I thought the Court would want to decide things that could affect the 2010 election quickly.

Now we are into December, and unless an opinion issues by Dec. 9 (the last day of arguments in December), we might not see the opinion until 2010. [Correction: The Court will issue orders on Dec. 14, and it could issue an opinion or more on that day as well.]

What's taking so long? I have no inside information, and I don't think that the fact that it is taking so long necessarily indicates that the case will be a blockbuster. That's one possibility---a decision overturning Austin, with bitter dissents--but there are other possibilities as well. The Chief could write a narrow opinion as in WRTL or NAMUDNO, and Justice Scalia could be crafting another "faux judicial restraint" concurrence. Justice Sotomayor could be writing a dissenting opinion arguing that the Court took a wrong turn a century ago in recognizing constitutional rights of corporations (something she mused about at oral argument). There are many possibilities. We'll just have to wait and see.

And I think it is really too early to say what a post-CU world might look like, and what might be constitutional post CU (such as the FAIR Elections Now Act). There will be plenty of time to parse the decision....once we have an opinion to parse.

Posted by Rick Hasen at November 29, 2009 05:57 PM