Where is Citizens United?

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.

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