If the Court was going to go the constitutional avoidance route in the Citizens United case, avoiding the constitutional question whether to overrule Austin v. Michigan Chamber of Commerce in favor of a narrow statutory holding stating that video-on-demand is not an electioneering communication, what’s taking so long?
CU was argued more than a month before NAMUDNO but NAMUDNO is out and CU awaits decision. But maybe in CU (rather than NAMUDNO) Justice Scalia will see fit to descry “faux judicial restraint” again, arguing again for Austin‘s demise, and maybe Justice Souter, an admittedly slow writer, could be crafting a dissent.
We may know as early as tomorrow. Or we might have to wait until Monday.