Supreme Court silent today on Montana

Following up on Meteor Blades' diary on Thursday, the Supreme Court of the United States did not, in fact, grant a writ of certiorari today in American Tradition Partnership v. Bullock, the appeal of the Montana Supreme Court decision finding Citizens United inapplicable given the state's history of corporate corruption in electoral politics.  

The case, now fully briefed as to whether cert was warranted, was teed up for discussion at last Thursday's conference of the justices, and based on the Court's normal schedule if cert was being granted, it would have been announced today. It wasn't. And so many (including me) assumed it meant that the majority behind Citizens United just wanted to reverse the Montana decision without additional argument, and that the dissenting justices needed additional time to write an opinion explaining why the case should have been heard.

Turns out, it's not that either. Instead, the Court's docket confirms the matter has been relisted for this Thursday's conference, meaning that they're still not sure what to do with it. As Tom Goldstein has noted, summary reversal is extremely atypical in cases like this:

[S]ummary reversal would be an extreme remedy.  As a matter of comity, the Court's near-uniform practice when it reviews a case in this posture ' viz., a merits decision holding that a statute does not violate the Constitution ' has been to show the states and their courts the respect of plenary review.

I think that it will be very close question whether five members of the Citizens United majority all conclude that the Montana Supreme Court's ruling is so outrageous that the decision should be summarily reversed.  (Note the wisdom (from the perspective of the dissenters) in the votes of Justices Ginsburg and Breyer on the stay application:  they point the Court towards plenary review to consider the merits of the state's arguments for limiting or overruling Citizens United, rather than simply dissenting and treating the case as another five-to-four fait accompli that would be more likely to generate a summary reversal.)

So expect more news on this case next Monday. But regardless of what the Court does, or when it does it, I strongly anticipate the Montana law barring corporate expenditures in state and local elections will remain stayed throughout this year's election cycle.

The Court did issue four opinions today, two of which deal with Native American matters, plus one on the Confrontation Clause I'll brief later today. Welcome to my busy season.

1:34 PM PT: Prof. Rick Hasen suggests that the relisting doesn't mean the Court doesn't know what to do yet, but that it also would be the Court's procedure if they have already decided to enter a summary reversal, with the dissenters still in the process of writing the dissent, and that the matter will continue to be relisted until they're done.