Breaking News: Supreme Court Grants Stay in Citizens United Montana Sequel, Special Statement of J. Ginsburg

I wasn’t expecting the granting of the stay until next week..  Here’s the order, with a special statement from Justices Breyer and Ginsburg:

The application for stay presented to Justice Kennedy and by him referred to the Court is granted, and the Montana Supreme Court’s December 30, 2011, decision in case No. DA 11-0081, is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court.

Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting the grant of the application for stay. Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.

A few initial thoughts:

1. The granting of the stay is unsurprising.  The Montana Supreme Court decision is a direct challenge to the Supreme Court’s Citizens United case.  The real question will be whether the Court sets the case for argument or not.  Here’s a thought: it takes only four Justices to set a case for argument.  Might the CU dissenters (plus Kagan for Stevens) vote to hear the case, so that the hypocrisy of the Supreme Court’s decision could be exposed.  What hypocrisy?  As I’ve explained, The CU majority presented its determination that independent spending cannot corrupt candidates or undermine voter confidence as a statement of fact, when it was not a statement of fact which can be rebutted with evidence.  It was a legal fiction to avoid saying: the first amendment trumps concerns about corruption.  I have urged the CU dissenters to make this point clear in any dissent from a summary reversal, and from Justice Ginsburg’s statement today about large amounts of money “elsewhere” (read Super PACs) it is clear that this is what Justice Ginsburg has in mind.  If this is about evidence, let’s consider the evidence.

2. Supreme Court mavens: if 5 justices vote for summary reversal, and four vote to grant cert. and hear the case, what happens? [UPDATE:  According to Peder Batalden of Horvitz and Levy, “The authors of the Stern & Gressman treatise believe the Court follows an internal convention requiring 6 votes to summarily reverse. (Page 343.) That would mean the Court could not summarily reverse if four Justices were prepared to grant cert.”] Maybe the case will be heard as a matter of courtesy in those circumstances.  Will the 5-Justice majority have the stomach for CU II?

3. And something else has changed since CU.  The Supreme Court summarily affirmed the Bluman case, affirming that sometimes the identity of the speaker in campaign finance does matter.  That is, the Court affirmed that the government can keep out foreign money.  I’ve argued repeatedly that barring foreign spending in elections is inconsistent with CU logic.  Will that sway the 5 justice CU majority?  Likely not.  But it does make for a stronger dissent.


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