Wednesday, January 13, 2010

Are Supremes Getting Cold Feet?

Just heard that no decision was issued by the U.S. Supreme Court in the Citizens United case today. There had been intense speculation that the ruling would come down yesterday. Didn't happen. Then a new flurry of media alerts from court watchers warned that today could very well be the day. Wrong again. For that matter, there was similar speculation late last fall that a decision was imminent.

Oral arguments in this case were originally heard last March, with a decision expected by summer. Then in June the court's majority decided to significantly expand the scope of its review, ordering a new round of oral arguments in September on whether precedents established in 1990 and 2003 restricting the use of corporate funds to influence elections should be overturned. Most observers took this as an ominous sign and expected a ruling before Christmas radically altering the political landscape.

All anyone can do is examine tea leaves, but my reading is the longer it takes for a ruling to come, the better. I'm not saying that when the ruling finally comes, it won't be bad. But it might not be as bad as many feared. With each passing day a broad, precedent-reversing decision becomes less likely because the delays hint that the extremists on the court are having a hard time finding a fifth vote to throw past Supreme Court rulings and longstanding federal and state laws on the scrap heap.

When Sandra Day O'Connor was on the high court, she was the fifth vote in a court majority that upheld campaign finance restrictions on more than one occasion. Conventional wisdom holds that when O'Connor retired and was replaced by Samuel Alito, a new majority hostile to campaign finance reform was formed.

The court's indecision on Citizens United makes you wonder if Justice Anthony Kennedy, who routinely was on the opposite side of O'Connor and the rest of the old majority in campaign finance cases, has decided against a wholesale dismantling of court precedents in this area. Or maybe all the commentaries published from coast to coast about how hypocritical it would be for Chief Justice John Roberts to overturn previous rulings willy-nilly after preaching judicial restraint in his confirmation hearings have given Roberts pause.

Whatever is going on, it's been months and the court hasn't been able to make a move on Citizens United. I would love to be a fly on the wall in those chambers.

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