[EL] Today's other Supreme Court opinion

[Allen Dickerson]

Adav,

Thank you for raising this interesting case -- I was beginning to wonder if anyone else was paying attention. To your point, the Citizens United majority can (and did) speak for itself. But I took the Court's objection here to be less about the scope of the remedy and more about the Ninth Circuit's decision to override the adversarial process.

Justice Ginsburg's opinion -- for the unanimous court -- didn't raise Citizens United. But it did note that the supplemental briefing requested by the Ninth Circuit was directed to hand-picked amici, and not to the parties themselves. Which is not, of course, what happened in Citizens United. And that those amici were then permitted 20 minutes of argument time to the Appellant's 10. Which is highly unusual, to put it mildly.

In other words, I'm not sure the Court (Justice Thomas aside) much cared about the merits of the Ninth Circuit's ruling. Those points were very thoroughly briefed by the Parties and a number of amici -- and completely ignored. But the full Court was clearly very concerned by the decision to essentially appoint amici as substitute counsel.

Best wishes,
Allen

Allen Dickerson
Legal Director
Institute for Free Speech
(202) 301-9000 (direct)


________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Adav Noti <anoti at campaignlegalcenter.org>
Sent: Thursday, May 7, 2020 5:36 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Today's other Supreme Court opinion


The Supreme Court’s non-Bridgegate opinion today was interesting from a political law perspective.  The Court smacked around<https://www.supremecourt.gov/opinions/19pdf/19-67_n6io.pdf> the Ninth Circuit for inventing a facial First Amendment challenge the plaintiff in the case hadn’t raised, ordering the parties to brief and argue it, and facially striking down the statute on the First Amendment grounds the court itself had devised.



Or to hyperlink that description slightly differently: inventing<https://transition.fec.gov/law/litigation/citizens_united_sc_08_order_rearg.pdf> a facial First Amendment challenge the plaintiff<https://transition.fec.gov/law/litigation/cu_cu_mot_sj.pdf> in the case hadn’t<https://transition.fec.gov/law/litigation/citizens_united_fec_motion_sj.pdf> raised<https://transition.fec.gov/law/litigation/cu_order_dismiss_cnt5.pdf>, ordering the parties to brief and argue<https://www.scotusblog.com/2009/06/briefing-set-on-citizens-united-rehear/> it, and facially striking down<https://scholar.google.com/scholar_case?case=14627663605033036164> the statute on the First Amendment grounds the court itself had devised.





Adav Noti
Senior Director, Trial Litigation & Chief of Staff

Campaign Legal Center
1101 14th Street NW, Washington, DC 20005

202.736.2203 | @AdavNoti<https://twitter.com/AdavNoti>

anoti at campaignlegalcenter.org<mailto:anoti at campaignlegalcenter.org>


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