At their private conference, the justices of the Supreme Court are scheduled to decide Thursday whether and how to take a second look at the Citizens United campaign finance decision. The usual odds that the Supreme Court will agree to hear a case are about one in a hundred. This one is pretty much a sure thing. The justices have already temporarily blocked a lower court decision in the case. In that decision, the Montana Supreme Court seemed to defy the higher court by saying that a state law regulating corporate political spending was constitutional notwithstanding Citizens United. Two dissenting State Supreme Court justices said they would have liked to vote with their colleagues but did not believe they were entitled to ignore the United States Supreme Court. “I find myself in the distasteful position of having to defend the applicability of a controlling precedent with which I profoundly disagree,” wrote one of them, Justice James C. Nelson.
Even two of the dissenters in Citizens United itself said the state court’s decision had been lawless impudence. “Lower courts are bound to follow this court’s decisions until they are withdrawn or modified,” Justice Ruth Bader Ginsburg wrote in February in explaining her vote to block the Montana decision. She was joined by Justice Stephen G. Breyer. In that same statement, Justice Ginsburg said the United States Supreme Court should now use the Montana case to weigh what the nation has learned since January 2010, when Citizens United overturned two precedents and allowed unlimited campaign spending by corporations and unions. The new case represented, she wrote, “an opportunity to consider whether, in light of the huge sums deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
Justice John Paul Stevens, who also dissented in Citizens United and retired a few months later, added his voice to the debate in a speech in Arkansas on May 30. Without referring directly to the Montana case, he said the Supreme Court’s First Amendment jurisprudence had become incoherent since Citizens United and required revision. All of this means that the Supreme Court will almost certainly agree to review the Montana case. At the same time, there is little reason to think the five justices in the majority in Citizens United have changed their minds.