Walter Dellinger to Supreme Court: Don't Summarily Reverse Montana Supreme Court's Application of Citizens United

Release Date: 
May 18, 2012

Washington, D.C. -- The United States Supreme Court should not summarily reverse the decision of the Montana Supreme Court upholding a state law restricting corporate spending in Montana elections, argue former acting Solicitor General Walter Dellinger and Professor James Sample of Hofstra Law School in an amicus brief filed today and authored by Arnold & Porter LLP and Demos.

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We hope that the Supreme Court does not accept the clamor from certain quarters for a 'facts don’t matter' approach to these cases

The brief, submitted in the case of American Tradition Partnership, Inc. v. Bullock, argues that summary reversal would be inappropriate because of the importance of the issue raised, the respect due a sovereign state supreme court, and the fact that the Montana court attempted a good faith application of Citizens United’s new doctrine to an extensive set of facts, as well as new issues that the Supreme Court did not address in its earlier holding.

"This case gives the Supreme Court the chance to take a closer look at some difficult but critical questions about how we balance competing First Amendment concerns in the wake of Citizens United," said Walter Dellinger, former acting Solicitor General and current Duke Law Professor, head of the Harvard Law School Supreme Court and Appellate Practice Clinic, and partner in the appellate practice group at O'Melveny & Myers LLP.  "Summary reversal would squander this chance and be inconsistent with the Court's historic practice."

According to the brief, the “bitter medicine of summary reversal,” as Chief Justice Roberts referred to the procedure, “should be reserved for decisions so clearly contrary to well-settled precedents…as to constitute a manifest and grievous error plainly not worth the time required for briefing and argument on the merits.”  Authors argue that the Montana Supreme Court did not commit such an error but rather conducted a good faith application of the new constitutional holding announced in Citizens United to an extensive and novel factual record.

In addition, brief authors argue that Citizens United left significant questions unanswered.

“As one of 39 states in which judges stand for election, Montana has a compelling state interest in preventing both the actuality and appearance of justice for sale---an interest plainly not before the Court in Citizens United” said Professor James Sample, an expert on the impact of spending in judicial elections.

It is well worth the Court’s time to carefully consider constitutional issues that go to the very heart of self-government

"With nothing less than our democracy at stake, it's critical that the Supreme Court not reverse the Montana Supreme Court without a full and fair review,” said Demos Counsel Liz Kennedy. “It is well worth the Court’s time to carefully consider constitutional issues that go to the very heart of self-government.”

Kent Yalowitz, partner at Arnold & Porter LLP and Counsel of Record on the brief, added that "the election-spending issues raised by the Citizens United case continue to vex and confound the courts. We hope that the Supreme Court does not accept the clamor from certain quarters for a 'facts don’t matter' approach to these cases."

In sum, the brief urged the U.S. Supreme Court to allow further development of the law in the states or, if it intends to review the matter this term, give Montana the opportunity to be heard before passing judgment on its hundred-year-old pro-democracy law.

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