Three new grants but no new opinions today from the Supreme Court.
Of particular note, the Court is still ruminating on Citizens United, the election speech case argued back on September 9. It has now taken the Court longer to address the one as-applied challenge in Citizens United than it did to address the slew of challenges to the McCain-Feingold law back in 2003 (McConnell v. FEC was argued on September 8, 2003, and the opinions were announced on December 10 that year).
Given the Court’s demonstrated wish to expedite a decision in the case before the upcoming primaries (as shown by the fact that the Court went to the trouble of holding a special sitting in September), the length of time to get a decision out suggests that there will be more than just a majority opinion and a dissent–I suspect there will be a substantial third opinion, and perhaps more.
I am insufficiently familiar with campaign finance law to know whether here is much of a possibility here that the Court will fail to obtain a majority of votes for a single opinion. Enough of the Justices have written separately on this area that someone who knows more about election law would have a better grasp of how the votes might be shaking out. But at a minimum, I suspect a substantial concurrence, if not a concurrence in the judgment, will be in the offing.
UPDATE: In the comments thread, Lee Liberman Otis offers an alternative (and very likely) reason for the Court’s unusual September argument: section 403(a)(4) of BCRA, which provides that “[i]t shall be the duty of the United States District Court for the District of Columbia and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of [an] action and appeal” challenging the constitutionality of any provision of BCRA. Thus, she notes, “If this is right, the Court probably does not feel that it needs to get the case decided by a particular deadline, but it probably does want to get it decided as quickly as it can do so, given the difficulties of coordinated action involving nine different and effectively coequal actors.” It is undoubtedly true that the Court is, as it said in the McConnell opinion, “[m]indful of § 403′s instruction that we expedite our disposition of these appeals to the greatest extent possible * * *.” McConnell v. FEC, 540 U.S. 93, 133 (2003). But I have to imagine that the Court is also mindful of the upcoming primaries, in part because there are some very high-profile primaries this year (for example, Rick Perry vs. Kay Bailey Hutchison).
I am confident that this fact is the furthest thing from the Justices’ minds, but by coincidence, there are (at least) two former Supreme Court clerks who are candidates in the upcoming primaries. And by further coincidence, they are former co-clerks: Ted Cruz (running unopposed for the GOP nomination for Texas Attorney General), and David Hoffman (running in the hotly contested Democratic primary to take President Obama’s old Senate seat). They both clerked for Chief Justice Rehnquist during October Term 1996.
Repeal 16-17 says:
Chief Justice Roberts, Justice Alito and Justice Kennedy will join a plurality opinion in which they will declare McCain-Feingold to be Unconstitutional, and overrule McConnell v. FEC, only to the extent necessary to rule in favor of Citizens United. Justice Scalia and Justice Thomas will join a passionate opinion, concurring in the judgment, saying that McCain-Feingold should be declared to be completely Unconstitutional and that McConnell v. FEC should be completely overruled. The remaining four Justices will join a dissenting opinion saying why the Court, in their opinion, has made an egregious mistake. There may be other concurring and/or dissenting opinions, but the above will be the most important ones.
December 14, 2009, 12:52 pmDoodahDoodah says:
Alito and Roberts might do such a thing, but I think Kennedy is with Scalia and Thomas when it comes to McConnell.
December 14, 2009, 1:25 pmJones says:
DoodahDoodah is right re. Kennedy; but both commenters assume the CJ will be willing to discard his usual as-applied approach and his opinion in Wisc. Right to Life. Either way, a broad facial invalidation would be a significant mea culpa on his part. I would guess Roberts is on his own in the middle here (and controlling).
December 14, 2009, 3:08 pmroguestage says:
Given that the issue re-briefed in September was whether to overturn Austin, we can count a few of the votes based on that case. Scalia and Kennedy were in dissent in Austin, so will likely vote to overturn it. Stevens was with the majority in Austin, so will likely vote to uphold it.
In another recent CFR case, Randall v Sorrell, Scalia, Thomas, and Kennedy concurred in the judgment and joined an opinion saying that all campaign finance laws violated the First Amendment. Stevens, Souter, and Ginsburg dissented, on the grounds that money is property, not speech, and the First Amendment thus doesn’t provide a reason to strike down CFR laws. Breyer wrote the lead opinion striking down the law on First Amendment grounds, with Roberts and Alito joining in part. That made for a 3-3-3 split; the law went down 6-3, but without a clear precedent on why.
If Randall is a guide, then Ginsburg will vote with Stevens again and Thomas will vote with Scalia/Kennedy again. That gives us 3-2 to strike down the law. Based on oral argument, I’m guessing that Sotomayor will vote with Stevens/Ginsburg, and Alito will probably vote with Scalia/Kennedy/Thomas, so 4-3 against. That leaves Breyer and the Chief.
Breyer’s opinion in Randall adhered pretty closely to precedent. If he did the same here, he’d be with Stevens/Ginsburg/Sotomayor voting to uphold Austin. That gives us 4-4 so far, and leaves the Chief.
I’d bet that the Chief wants to strike down the law, but that he also wants a clear majority opinion. The problem is that he can’t get a 5-4 majority to coalesce around a single rationale for striking down the law, at least without overturning some of his own earlier opinion in WRTL. I don’t think he’s willing to go back on his own opinion, and I don’t think he’s willing to overturn precedent without a clear majority. Hence we have the horns of a dilemma, and the delay seen so far.
Alternately, the Chief could have a clear 5-4 majority to overturn the law, and he’s waiting for Stevens and Breyer to finish up their two separate dissenting opinions, one saying the First Amendment doesn’t apply at all, one saying that precedent dictates that the law stand.
A third option: the opinions are done and the Court is taking its time to let the current raft of primary elections take place without a major change in the governing law. Doubtful, but I could see it happening.
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December 14, 2009, 4:33 pmTim says:
If McCain-Feingold is actually declared unconstitutional, it could be the biggest win for liberty in my lifetime.
December 14, 2009, 4:58 pmLee Liberman Otis says:
Wtih regard to whether the Court’s scheduling has anything to do with its desire to get a decision out in time for the primaries: I too initially thought that the Supreme Court’s unusual reargument schedule was a result of some consideration of this sort, or perhaps tied to Justice Stevens’ thinking about retirment. But on reflection, and after re-checking the statute, I don’t think that is the explanation. Rather I think the Court was simply seeking to fulfill its duty under BCRA’s judicial review provisions. These state: “‘‘(4) It shall be the duty of the United States District Court for the District of Columbia and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of [an] action and appeal [challenging the constitutionality of any provision of BCRA brought under these provisions].” BCRA 403(a)(4). “to the greatest extent possible” would ordinarily be understood to mean “as quickly as the parties can put together good briefs, without regard to when the Court would ordinarily convene for OT 2009.” This makes the Court’s decision to schedule argument in September a gesture of respect toward Congress’s wishes, if not command, to get this done as quickly as possible, and nothing more complicated than that. If this is right, the Court probably does not feel that it needs to get the case decided by a particular deadline, but it probably does want to get it decided as quickly as it can do so, given the difficulties of coordinated action involving nine different and effectively coequal actors.
December 14, 2009, 5:39 pmRPT says:
I believe everyone is entitled to their own peculiar view of “liberty”.
December 14, 2009, 7:20 pmKharn says:
I’d rather the Justices take their time to build an opinion that will properly handle the issue instead of working to meet an arbitrary deadline. But, it would be nice to not have McCain-Feingold during the primaries…
Tim:
December 14, 2009, 7:20 pmThat, or Privileges & Immunities incorporation via McDonald. Both could be earth-shattering.
ArthurKirkland says:
Congratulations, young man! You write remarkably well for a five-year-old (obviously born after June 28, 2004).
Your ability to forecast liberty-promoting events that are to occur during the remainder of your life, however, has yet to develop.
December 14, 2009, 7:56 pmMatthewM says:
ArthurKirkland, do you have any candidates for wins for liberty? I’m 41, and striking down McCain-Feingold (as well as the other noxious regulations on speech attendant to it) would be a monumental blow in favor of freedom, probably greater in potential impact and future harm-reduction than any other in those four decades.
December 14, 2009, 8:11 pmShelbyC says:
Uh, click on his link.
December 14, 2009, 8:25 pmShelbyC says:
BTW, I’m with you, MathewM, but folks can differ, I guess.
December 14, 2009, 8:26 pmOrin Kerr says:
Thanks for the terrific comment, Lee — that may be right.
December 14, 2009, 8:42 pmFinal High Court Session of 2009 Ends Without Campaign Finance Decision - Legal News says:
[...] a lot of back and forth on circulating drafts," said Elwood, who has written about the delay on the Volokh Conspiracy blog. "The principal opinion responds to a dissent, and the dissent then readjusts to respond to the [...]
December 14, 2009, 8:50 pmArthurKirkland says:
I am no expert, but a few cases readily come to mind from my lifetime:
Roughly four decades ago, the Supreme Court, in Loving v. Virgina, overturned the ruling of a trial court judge who declared, “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix,” and then convicted the Lovings for the crime of marrying while differently pigmented.
A few years later, the Court, in Bivens, vindicated the Fourth Amendment by recognizing a remedy for government violation of a citizen’s constitutionally protected interest.
In the 1980s, the Court, in a case from Texas involving a modern-day ‘blasphemy’ prosecution, ruled that a citizen could not be convicted for burning a flag.
Five year ago, the Court, brushing aside the government’s hysteria and assertion of limitless detention authority, ruled that a citizen named Hamdi was entitled to petition the courts for his liberty.
In 2008, the Court, in Heller, concluded that the Second Amendment protects an individual right to bear arms for self-defense in the home.
A few months ago, the Court ruled that a strip search of a teenage girl by unhinged school officials (drug warriors chasing ibuprofen tablets) was unconstitutional.
Perhaps others can identify additional “wins” that seem at least as important than a ruling in a case involving funding of campaign advertisements.
December 14, 2009, 11:16 pmMatthewM says:
I know that my my conception of important rulings may be considered odd by some, but I do indeed believe that the striking down of McCain-Feingold would be more important from a freedom perspective than the cases mentioned above. Although some of these are critically important (especially to the parties involved), they don’t directly concern one of the two cornerstones of the democratic system — freedom of speech (I would argue that the right to vote is the other.) This isn’t just a simple law that regulates “campaign advertisements” — it controls, and in certain situations, destroys the right of certain organizations to express opinions on undisputedly public affairs. This is not just a bad policy or a particularized persecution that affects a few people or even a few thousand — it is a system-wide attack on the foundations of political speech in this country. As such, it represents an unparalleled threat and danger not just to the liberties of “corporations,” but to the most important underpinnings of democratic governance. This is why I, and so many others, are so concerned about this issue. And I think perhaps a majority of the Supreme Court now agrees with us.
December 15, 2009, 12:10 amSoronel Haetir says:
I would not be so sure Roberts is wedded to WisRTL. He may well be seeing that the FEC simply cannot do the job in an appropriate manner.
Plus now the constitutional question is back befoore the court. McConnel was such an incredible mess that doing something may well appear to be the correct choiice.
December 15, 2009, 12:35 amArthurKirkland says:
A corporation (a confection of a state, with entitlements created and regulated by the state) denied an opportunity to fund campaign advertisements vs. a person being imprisoned without appeal . . . or a citizen incarcerated for marrying someone whose pigmentation offends a backward state’s statute or a small-minded judge’s superstitious bigotry . . . or a middle-school girl strip-searched by nanny-staters . . . or a citizen jailed for burning a cloth . . .
Different strokes, I guess
December 15, 2009, 12:40 amShelbyC says:
Don’t knock it too hard, Arthur. One of the unfortunate aspects of a democracy is that whoever controls the level of information that’s easiest for the voters to access wields an inordinate amount of power. And campain-finance regs are an attempt by the state to regulate who controls that information. That’s certainly a huge encroachment on freedom. Now you may argue that the government should regulate who can access that information, but that’s certainly not a pro-freedom viewpoint.
December 15, 2009, 1:46 amSoronel Haetir says:
AK,
In regard to the Gitmo cases, while very serious for the participants, I don’t see them having as great an impact on the process of choosing our elected officials as do the various campaign laws. I see much the same with marriage for that matter, we could theoretically abolish state recognized marriage without changing the basic form of our government.
Silencing critics of elected officials, or even just keeping them off the more powerful methods of mass communication is odious to freedom IMO.
December 15, 2009, 2:32 amThoughts on the Citizens United Delay | DailyWrit says:
[...] commentators, most notably John Elwood on Volokh Conspiracy and Tony Mauro for the Legal Times, have considered the possible reasons and [...]
December 15, 2009, 2:49 amTim says:
Ahh, so apparently accused war criminals have habeas rights now and I’m supposed to be excited. Nothing to see here, folks, move along now.
Unless you end up using Dick Heller’s .22 caliber revolver to overthrow this government, I’m pretty sure the ability to say whatever you want, in any medium, specifically about a political candidate might be just a wee bit more valuable than most of the other things mentioned in your post.
Little else matters when the core purpose for the 1st Amendment’s existence is threatened by a statute.
December 15, 2009, 6:10 amGavel Grab » Tuesday Media Summary says:
[...] The Volokh Conspiracy: Where is Citizens United? John Elwood – 12/14/2009 [...]
December 15, 2009, 10:42 amArthurKirkland says:
Your perspective suggests you have never been imprisoned (particularly without opportunity for appeal) or, even, considered what that might be like.
December 15, 2009, 12:15 pmuberVU - social comments says:
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Gavel Grab » Citizens United: ‘Where, oh Where…’ says:
[...] of Citizens United Sept. 9. You can also check out “Where is Citizens United” from The Volokh Conspiracy blog, or read more about a decision’s potential impact on both federal and state [...]
December 15, 2009, 5:36 pmChris Travers says:
Repeal16-17 has presented too sane a view.
If McConnel is any indication we will see a result which has a syllabus longer than most early Supreme Court opinions and will break down as follows:
1) Justice Scalia will deliver the opinion of the court as regards part 1 and concur in part and in judgement.
2) Justice Thomas will deliver the opinion of the court as regards part 2, and concur in part and in judgement
3) Justice Alito will deliver the opinion of the court as regards part 3, and concur in part and in judgement
4) Justice Kennedy will deliver the opinion of the court as regards part 4, and concur in part and in judgement
5) Chief Justice Roberts will deliver the opinion of the court as regards parts 5-8 and concur in part and in judgement.
6) Justice Ginsburg will file a dissenting opinion which justice Sotomayor will join.
7) Justice Breyer will file a dissenting opinion which justice Stevens will join in part
8) Justice Stevens will file a dissenting opinion joining in part justices Ginsberg and Sotomayor, and in part Breyer, but will reach a different result.
And the rest of us will have a headache tryng to figure out what it means.
December 15, 2009, 8:47 pm