Following up on this post, a few readers have written to say that the Court would still have jurisdiction over the issue, pointing me to Stern and Gressman pointing out that the Court’s rules are not jurisdictional, but prudential, and arguing that once the Court has a First Amendment issue before it, it can resolve it in whatever way it pleases.
I think it is right to say that there is no jurisdictional bar to the Court using Citizens United to overrule Austin and/or the relevant portion of McConnell. Still, it would be aggressive and against the Court’s own rules and usual practice to reach issues that (1) were abandoned and dismissed by stipulation of the parties in the lower court, and (2) not included in the jurisdictional statement or even well connected to those issues.