Perhaps for First Time, Justice Breyer’s McCutcheon Dissent Cites Unavailable Forthcoming Scholarship

I was rereading McCutcheon last night in preparation for a Monday talk on the case at the Center for the Study of Democracy.  I noticed that Justice Breyer cites to Robert Post’s forthcoming book on Citizens United:

That is also why the Court has used the phrase “subversion of the political process” to describe circumstances in which “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.” NCPAC, 470 U.S., at 497, 105 S.Ct. 1459. See also Federal Election Comm’n v. National Right to Work Comm., 459 U.S. 197, 208, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) (the Government’s interests in preventing corruption “directly implicate the integrity of our electoral process” (internal quotation marks and citation omitted)). See generally R. Post, Citizens Divided: Campaign Finance Reform and the Constitution 7–16, 80–94 (forthcoming 2014) (arguing that the efficacy of American democracy depends on “electoral integrity” and the responsiveness of public officials to public opinion).

The book is forthcoming in June according to Amazon, based on Robert’s Tanner lectures and with responses by Pam Karlan, Larry Lessig, and Frank Michelman.  SSRN notes the book, but provides no draft.

Have there been any other occasions where Justices have cited scholarship not available in the public record?  Justice Scalia cited a forthcoming piece posted on SSRN in Heller (“And if one looks beyond legal sources, “bear arms” was frequently used in nonmilitary contexts. See Cramer & Olson, What Did “Bear Arms” Mean in the Second Amendment?, 6 Georgetown J.L. & Pub. Pol’y (forthcoming Sept. 2008), online at http://papers. (as visited June 24, 2008, and available in Clerk of Court’s case file) (identifying numerous nonmilitary uses of “bear arms” from the founding period).”). Justice Kennedy did in Boumediene (“. Thus the writ, while it would become part of the foundation of liberty for the King’s subjects, was in its earliest use a mechanism for securing compliance with the King’s laws. See Halliday & White, The **2245 Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L.Rev. 575, 585 (2008) (hereinafter Halliday & White) (manuscript, at 11, online at 3 /papers.cfm?abstract_id =1008252 (all Internet materials as visited June 9, 2008, and available in Clerk of Court’s case file) (noting that “conceptually the writ arose from a theory of power rather than a theory of liberty”)”.)

But Justice Breyer cited to something which is not available on SSRN nor is there any notation that a copy is in the Clerk of Court’s file.

Is there any precedent for this?

UPDATE: Derek Muller writes:

Rick, I tweeted (the height of academic inquiry, I know–here and here, the second with a link to a now-expired HUP page) about it when McCutcheon was released–but, sadly, the only response was of interest, not of anyone who could identify any precedent. Interestingly, the HUP link identifying the forthcoming book was available when McCutcheon was released, but it appears that HUP has now moved the page to here:

Another question I had is, who sent him the advance copy, and did everyone on the Court get them?
Share this: