[EL] Rick's summary reversal question

[Jerald Lentini]

Rick asks:

--*"Supreme Court mavens: if 5 justices vote for summary reversal, and four
vote to grant cert. and hear the case, what happens?  Maybe the case will
be heard as a matter of courtesy in those circumstances.  Will the
5-Justice majority have the stomach for CU II?"*

...and then follows up with a mention of the "Rule of Six:" the convention
that, unless at least six Justices are on board with the decision to issue
a summary judgment, the case will generally be set for argument. The Rule
of Six might well be what governs the Court's treatment of the Montana
case, but the Justices could also simply ignore it as they see fit, which
they've done at least four times before.

I know of one recent case where four Justices dissented from a
grant-vacate-remand order (*Wellons v. Hall*, No. 09-5731). (The dissenters
in Wellons were, incidentally, the four conservatives.) While a student at
UNC Law, J. Mitchell Armbruster, now a partner at Smith Anderson in
Raleigh, wrote a note identifying three cases between 1977 and 1990 where
the "rule of six" must have been disregarded, since four Justices dissented
from the summary reversal. (*NOTE: Deciding Not to Decide: The Supreme
Court's Expanding Use of the "GVR" Power Continued in Thomas v. American
Home Products, Inc. and Department of the Interior v. South Dakota*, 76
N.C.L. Rev. 1387, April 1998.)

-JR

On Fri, Feb 17, 2012 at 6:33 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>   Breaking News: Supreme Court Grants Stay in Citizens United Montana
> Sequel, Special Statement of J. Ginsburg<http://electionlawblog.org/?p=30145>
> Posted on February 17, 2012 3:28 pm <http://electionlawblog.org/?p=30145>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> I wasn’t expecting <http://electionlawblog.org/?p=30113>the granting of
> the stay until next week..  Here’s the order<http://big.assets.huffingtonpost.com/11A762.pdf>,
> with a special statement from Justices Breyer and Ginsburg:
>
> AMERICAN TRADITION PARTNERSHIP, INC., ET AL. V. BULLOCK, ATT’Y
> GEN. OF MT, ET AL.
> The application for stay presented to Justice Kennedy and by him referred
> to the Court is granted, and the Montana Supreme Court’s December 30, 2011,
> decision in case No. DA 11-0081, is stayed pending the timely filing and
> disposition of a petition for a writ of certiorari. Should the petition for
> a writ of certiorari be denied, this stay shall terminate automatically. In
> the event the petition for a writ of certiorari is granted, the stay shall
> terminate upon the issuance of the mandate of this Court.
>
> Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting
> the grant of the application for stay. Montana’s experience, and experience
> elsewhere since this Court’s decision in Citizens United v. Federal
> Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to
> maintain that independent expenditures by corporations “do not give rise to
> corruption or the appearance of corruption.” Id., at ___ (slip op., at 42).
> A petition for certiorari will give the Court an opportunity to consider
> whether, in light of the huge sums currently deployed to buy candidates’
> allegiance, Citizens United should continue to hold sway. Because lower
> courts are bound to follow this Court’s decisions until they are withdrawn
> or modified, however, Rodriguez de Quijas v. Shearson/American Express,
> Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.
>
> A few initial thoughts:
>
> 1. The granting of the stay is unsurprising.<http://electionlawblog.org/?p=29674>
> The Montana Supreme Court decision is a direct challenge to the Supreme
> Court’s *Citizens United* case.  The real question will be whether the
> Court sets the case for argument or not.  Here’s a thought: it takes only
> four Justices to set a case for argument.  Might the CU dissenters (plus
> Kagan for Stevens) vote to hear the case, so that the hypocrisy of the
> Supreme Court’s decision could be exposed.  What hypocrisy?  As I’ve
> explained <http://electionlawblog.org/?p=29674>, The CU majority
> presented its determination that independent spending cannot corrupt
> candidates or undermine voter confidence as a statement of fact, when it
> was not a statement of fact which can be rebutted with evidence.  It was a
> legal fiction to avoid saying: the first amendment trumps concerns about
> corruption.  I have urged the CU dissenters to make this point clear in any
> dissent from a summary reversal, and from Justice Ginsburg’s statement
> today about large amounts of money “elsewhere” (read Super PACs) it is
> clear that this is what Justice Ginsburg has in mind.  If this is about
> evidence, let’s consider the evidence.
>
> 2. Supreme Court mavens: if 5 justices vote for summary reversal, and four
> vote to grant cert. and hear the case, what happens?  Maybe the case will
> be heard as a matter of courtesy in those circumstances.  Will the
> 5-Justice majority have the stomach for *CU *II?
>
> 3. And something else has changed since CU.  The Supreme Court summarily
> affirmed the *Bluman* case, affirming that sometimes the identity of the
> speaker in campaign finance does matter.  That is, the Court affirmed that
> the government can keep out foreign money.  I’ve<http://www.nytimes.com/roomfordebate/2012/01/05/should-foreign-money-be-allowed-to-finance-us-elections/bluman-v-fec-is-a-trojan-horse> argued
> <http://www.tnr.com/article/politics/98162/citizens-united-foreign-money>
> repeatedly <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576>that barring foreign spending in elections is inconsistent with CU logic.
> Will that sway the 5 justice CU majority?  Likely not.  But it does make
> for a stronger dissent.
>
>
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30145&title=Breaking%20News%3A%20Supreme%20Court%20Grants%20Stay%20in%20Citizens%20United%20Montana%20Sequel%2C%20Special%20Statement%20of%20J.%20Ginsburg&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
> Court <http://electionlawblog.org/?cat=29> | Comments Off
>   Bad Judge Draw for South Carolina in Voter ID Preclearance Case<http://electionlawblog.org/?p=30142>
> Posted on February 17, 2012 3:15 pm <http://electionlawblog.org/?p=30142>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Via Texas Redistricting<http://txredistricting.org/post/17787488141/the-three-judge-panel-in-the-south-carolina-voter-id>comes the news that the panel is district court judges Collen
> Kollar-Kotelly, and John Bates and D.C. Circuit judge Brett Kavanaugh. This
> panel will decide whether the Department of Justice erred in not approving
> South Carolina’s voter identification law under section 5 of the Voting
> Rights Act.  DOJ concluded the law would worsen the position of minority
> voters because minority voters are less likely than whites to have
> government-issued id.  Among South Carolina’s arguments is that the court
> should read the preclearance requirement narrowly (making it easier to get
> things precleared) to avoid serious constitutional problems with a
> broadly-read section 5.  (The underlying claim is that section 5 violates
> states’ rights to choose their own election rules and is now an
> unconstitutional exercise of congressional power given no recent history of
> intentional discrimination by covered jurisdictions.)
>
> A few reactions.  First, the brain power on this panel is unbelievable.
> The quality of the DC judges is very high to begin with but this is a very
> smart panel.  Second, this draw is probably not great for South Carolina.
> Judge Kollar-Kotelly was a tour de force in writing one of the mammoth
> opinions in the three-judge court case *McConnell v. FEC* upholding most
> of the McCain-Feingold campaign finance law.  The Ninth Circuit ended up
> following her decision.  She’s going to be skeptical of South Carolina’s
> arguments about the constitutional problems with section 5 of the VRA.
> John Bates, a George W. Bush appointee, recently issued *two opinions*(Shelby County and the LaRoque (Kinston) case) rejecting constitutional
> challenges to section  of the Voting rights Act.  Judge Kavanaugh, while
> very conservative, has proven himself no activist when it comes to the
> election case; he rejected a recent argument to blow a hole in the
> McCain-Feingold law’s soft money provisions on grounds that it was for the
> Supreme Court, not the lower courts, to overturn earlier precedent.
>
> But even if South Carolina faces long odds before the three-judge court,
> we all know the main action will be before the Supreme Court.  That’s why
> South Carolina already hired big gun Paul Clement to work on this case.
>
> The next question will be whether South Carolina seeks to expedite
> consideration of this case so that it will have a chance to use its voter
> id law in the November elections.  I’ve explained in
> <http://www.slate.com/articles/news_and_politics/jurisprudence/2011/12/the_obama_administration_s_risky_voter_id_move_threatens_the_voting_rights_act.html>
> *Slate<http://www.slate.com/articles/news_and_politics/jurisprudence/2011/12/the_obama_administration_s_risky_voter_id_move_threatens_the_voting_rights_act.html>
> *how this could put the thorny issue before SCOTUS before the election
> (though that seems less likely as time ticks by).
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30142&title=Bad%20Judge%20Draw%20for%20South%20Carolina%20in%20Voter%20ID%20Preclearance%20Case&description=>
>   Posted in Supreme Court <http://electionlawblog.org/?cat=29>, voter id<http://electionlawblog.org/?cat=9>,
> Voting Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
>   “Sheriff Baca admits violating campaign endorsement law”<http://electionlawblog.org/?p=30139>
> Posted on February 17, 2012 2:02 pm <http://electionlawblog.org/?p=30139>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> LA Times<http://latimesblogs.latimes.com/lanow/2012/02/sheriff-baca-admits-campaign-endorsement-law-violation-uniform.html>:
> “Los Angeles County Sheriff Lee Baca admitted Friday that he broke state
> law by making a political endorsement while in uniform. Baca’s
> acknowledgment of the violation came after inquiries from The Times about a
> campaign video on the website for Dist. Atty. hopeful Carmen Trutanich that
> shows Baca wearing his badge and his department-issued sheriff’s uniform.”
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30139&title=%E2%80%9CSheriff%20Baca%20admits%20violating%20campaign%20endorsement%20law%E2%80%9D&description=>
>   Posted in campaigns <http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>,
> conflict of interest laws <http://electionlawblog.org/?cat=20> | Comments
> Off
>   “Foster Friess aspirin joke shows danger to candidates of outside
> political groups” <http://electionlawblog.org/?p=30136>
> Posted on February 17, 2012 1:12 pm <http://electionlawblog.org/?p=30136>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Dan Eggen writes<http://www.washingtonpost.com/politics/foster-friess-aspirin-joke-shows-danger-to-candidates-of-outside-political-groups/2012/02/17/gIQA3VB6JR_story.html>for WaPo.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30136&title=%E2%80%9CFoster%20Friess%20aspirin%20joke%20shows%20danger%20to%20candidates%20of%20outside%20political%20groups%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>   “Should You Donate to a Candidate or a Super PAC?”<http://electionlawblog.org/?p=30133>
> Posted on February 17, 2012 1:10 pm <http://electionlawblog.org/?p=30133>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> A *Slate* Explainer<http://www.slate.com/articles/news_and_politics/explainer/2012/02/super_pac_or_candidate_where_do_you_get_the_most_bang_for_your_political_buck_.html>
> .
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30133&title=%E2%80%9CShould%20You%20Donate%20to%20a%20Candidate%20or%20a%20Super%20PAC%3F%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>   “The .0000063% Election” <http://electionlawblog.org/?p=30131>
> Posted on February 17, 2012 1:08 pm <http://electionlawblog.org/?p=30131>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Ari Berman blogs<http://www.huffingtonpost.com/ari-berman/super-pacs-2012_b_1281716.html>
> .
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30131&title=%E2%80%9CThe%20.0000063%25%20Election%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>   “Internet Voting: Will Democracy or Hackers Win?”<http://electionlawblog.org/?p=30128>
> Posted on February 17, 2012 1:06 pm <http://electionlawblog.org/?p=30128>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> The *News Hour* reports <http://www.youtube.com/watch?v=MgZewQYZK7w>.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30128&title=%E2%80%9CInternet%20Voting%3A%20Will%20Democracy%20or%20Hackers%20Win%3F%E2%80%9D&description=>
>   Posted in internet voting <http://electionlawblog.org/?cat=49>, voting
> technology <http://electionlawblog.org/?cat=40> | Comments Off
>   “Newt Gingrich threatens TV stations over ad”<http://electionlawblog.org/?p=30126>
> Posted on February 17, 2012 1:05 pm <http://electionlawblog.org/?p=30126>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> *Politico* reports <http://www.politico.com/news/stories/0212/73031.html>:
>
> The ad is a slight variation of one that Restore Our Future has been running
> heavily in multiple states<http://www.politico.com/blogs/burns-haberman/2011/12/mitt-super-pac-hits-gingrich-on-china-abortion-108195.html>since December, and the Gingrich campaign did not respond when asked why
> they were launching the official challenge now.
>
> A well-connected Washington, D.C., campaign finance lawyer suggested the
> timing may be related to the fact that McKenna Long & Aldridge, the law
> firm of Gingrich’s top outside campaign counsel Stefan Passantino,
> represents TV stations in Georgia.
>
> In fact, the Gingrich campaign paid another law firm, the Atlanta-based
> Hall Booth Smith & Slover, to send the letter to TV stations “to ensure
> there are no conflicts,” said Gingrich campaign spokesman R.C. Hammond.
>
> The Gingrich campaign said some of the stations that received the letter
> intended to report on it, but did not answer when asked if any planned to
> remove the ad.
>
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30126&title=%E2%80%9CNewt%20Gingrich%20threatens%20TV%20stations%20over%20ad%E2%80%9D&description=>
>   Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off
>   “Texas: Court of Appeals tosses out El Paso recall”<http://electionlawblog.org/?p=30123>
> Posted on February 17, 2012 1:02 pm <http://electionlawblog.org/?p=30123>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> This item<http://recallelections.blogspot.com/2012/02/texas-court-of-appeals-tosses-out-el.html>appears at the Recall Elections Blog.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30123&title=%E2%80%9CTexas%3A%20Court%20of%20Appeals%20tosses%20out%20El%20Paso%20recall%E2%80%9D&description=>
>   Posted in recall elections <http://electionlawblog.org/?cat=11> | Comments
> Off
>  Felon Voting Possibly at Issue in Dewine Flip from Romney to Santorum<http://electionlawblog.org/?p=30118>
> Posted on February 17, 2012 9:41 am <http://electionlawblog.org/?p=30118>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Interesting.<http://www.buzzfeed.com/zekejmiller/ohio-ag-to-withdraw-romney-endorsement-will-back>
> There aren’t too many issues where Romney can run to the right of Santorum.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30118&title=Felon%20Voting%20Possibly%20at%20Issue%20in%20Dewine%20Flip%20from%20Romney%20to%20Santorum&description=>
>   Posted in felon voting <http://electionlawblog.org/?cat=66> | Comments
> Off
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
>
> _______________________________________________
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