December 08, 2009

Is Citizens United Drafting Sapping the Justices' Energies and Affecting Their Work Product? And What Does it Mean for a Citizens United Opinion?

John Elwood, who is an uncommonly qualified observer, suggests it may be so. He points to the relatively simple and uninteresting opinions that emerged today, asking, in essence, "what took so long?"

The question is how much pressure the Court sees to resolve Citizens United quickly. Here's why I think there's pressure:

(1) the case is left over from last term

(2) the jurisdictional statute (in BCRA) mandates that the cases be expedited, and I know from my examination of the drafting history of Buckley v. Valeo, the Court takes such expedite language seriously

(3) the Court understands that its rulings affect campaign behavior, and it won't be long before the 2010 primary season gets into full swing

So I'd think the opinion comes out on Monday, Dec. 14, the last opportunity this calendar year. But I've been wrong already on timing. And I've got a beverage-of-choice bet with another very knowledgeable Supreme Court observer who thinks we won't see an opinion Monday---that the tough issues in the case (tough issues of the Court's own making, I might add) are going to take longer to resolve than this.

Posted by Rick Hasen at December 8, 2009 09:11 PM