The American Prospect

Garrett Epps

February 21, 2012

The state’s challenge to Citizens United might make the Supreme Court rethink—but not overturn—the ruling.

At the opening of each oral argument session, a Supreme Court clerk announces, “All those having business before this honorable Court draw nigh and you shall be heard.”But does the Court really listen?

We are about to witness an interesting case study. Late last week, the Court announced a stay of the Montana’s Supreme Court’s judgment in Western Tradition Partnership v. Bullock. In that case, a majority of the state court in essence said to the Supreme Court majority, “You boys don’t know enough to pour water out of a boot.” The opinion was a direct challenge to the Court’s most controversial decision in at least a decade—Citizens United v. Federal Election Commission.

The Court will now consider a formal petition for cert., due by the end of next month. Citizens groups, states, and business groups can file amicus briefs on the issues raised by the case, laying out their critique of Citizens United.

Two Justices of the Court have invited them to do exactly that. In a statement appended to the Court’s order, Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer (both dissenters in Citizens United) say: “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.”