How significant is it
that Bopp has filed in the Supreme Court? I think it is fairly significant.
As I indicated two posts below this one (where I questioned why there was
a delay in Bopp filing these documents that he had promised to file), these
filings for the first time bring the merits of the case to the Supreme Court.
Chief Justice Rehnquist cannot simply fail to decide these motions as he
did with the previously-filed NRA motion. The NRA motion asked for a Supreme
Court stay before the district court first ruled on the stay request.
The Chief Justice told the NRA to come back if it did not get the relief
it wanted from the district court. It did get the relief, and therefore it
did not need to come back to the Chief Justice.
Bopp's case is different. One of his two applications (according to the press
release below--I haven't yet seen the documents) asks the Chief Justice to
reverse certain aspects of the stay decision of the lower court. The second
application apparently asks for a stay of a portion of the BCRA itself---that
portion dealing with electioneering communications. It is possible that the
Court could get away with not dealing with the second application on the merits;
it could well be barred by the doctrine of "laches" if the Court concludes
Bopp waited too long to ask for this relief. (No party asked for a stay
of the BCRA in the lower court pending a final decision in the case.) But
the first application likely would be considered on the merits. The lower
court has ruled.
In determining whether or not to grant the relief, as I have explained here,
the Chief (who likely would refer the applications to the entire Court) needs
to consider both irreparable harm and the likelihood of success on the merits.
Although I have cautioned not to read too much into the Court's decision to
grant or deny this relief, it may be some indication of how the Court
is likely to rule on some of the constitutional provisions. It is likely
to be the only such indication until oral argument, whenever that
occurs.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com