U.S. Supreme Court

Summary Reversal Could Be Used in Citizens United Sequel; Is It Appropriate?


The question in a Citizens United sequel is not whether the U.S. Supreme Court will accept the case but how the justices will reverse the Montana Supreme Court.

That’s the assessment of a New York Times Sidebar column, which says it’s “pretty much a sure thing” that the Supreme Court will grant cert after the Montana Supreme Court rejected Citizens United. The justices are considering the cert petition on Thursday.

The Montana Supreme Court said it wasn’t bound by Citizens United, partly because of the state’s unique history of political corruption. Its ruling upheld a state ban on independent campaign spending by corporations.

Assuming cert is granted, the Supreme Court could call for briefs and schedule an argument for the fall, the Times says. “Or it could use a favorite tool of the court led by Chief Justice John G. Roberts Jr.—the summary reversal,” the newspaper says. The court has issued nine summary reversals so far this year in which the court issues an unsigned opinion on the merits without full briefing or oral arguments.

Widener law professor Laura Krugman Ray has written a law review article about the history of the per curiam opinion and its use in Bush v. Gore. She tells the Times the issue is so important in the Montana case that a summary reversal is not appropriate. “It’s clear this is going to be a history-making case,” she said. “Everyone should sign on to what he or she subscribes to.”

Prior coverage:

ABA Journal: “Citizens Dis-United: Justices May Take Another Look at Campaign Finance Case”

ABAJournal.com: “Supreme Court Stays Montana Campaign Ruling; Ginsburg Sees Opportunity to Revisit Citizens United”

ABAJournal.com: “Critic Calls Montana Ruling on Corporate Campaign Contributions an ‘Act of Defiance’ ”

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