The U.S. Supreme Court has yet to issue its procedural decision in the Montana case challenging Citizens United.
Here’s a good attempt to interpret where things may be headed, based on the very limited information made public so far, from Brenda Wright’s blog "Policy Shop", published by Demos:
Supreme Court Delays Decision On Montana Money In Politics Case
Sherlock Holmes famously solved a mystery by noting the significance of the dog that didn’t bark – the dog’s silence suggested that the murderer could not have been a stranger.
Today, the “dog that didn’t bark” is the Supreme Court, which took no public action on the cert. petition in American Tradition Partnership, Inc. v. Bullock, although the petition was on the Court’s conference list on June 14. This is the case in which the Montana Supreme Court last December upheld a 100-year-old ban on corporate money in Montana elections, despite the U.S. Supreme Court’s 2010 Citizens United decision that struck down a federal ban on corporate independent expenditures.
Both the majority and dissenting opinions of the Montana Supreme Court sharply criticized the factual assumptions underlying the Citizens United decision – for example, the assumption that independent expenditures cannot be corrupting. The U.S. Supreme Court issued a stay in February, suggesting that the Court was likely to overturn the Montana Supreme Court’s decision – but Justices Ginsburg and Breyer issued a provocative concurring statement stating that experience since Citizens United had undermined the decision of the Roberts majority and that the Montana case provided an opportunity to revisit CU.
The Supreme Court will have one more opportunity next Monday to take action on the case before its term ends – this morning, the docket sheet for the case shows it has been “redistributed for conference of June 21, 2012.” But if the Court still takes no action then, the Court’s silence will be of great interest. Most likely, it will mean one of two things: (1) that the Court could not reach consensus on how to proceed, given the many other weighty issues on its plate at the end of the term, and therefore will decide in the fall how it intends to address the case; or (2) that the Court has decided to summarily reverse the Montana Supreme Court, but one or more justices are writing a dissent, causing a delay in publishing the Court’s disposition of the case.
A summary reversal when the Court is sharply divided over the merits of a case would be at odds with the Court’s historical practice and a further confirmation of the extreme judicial activism of the Roberts Court…
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