Another Tuesday, another out-of-nowhere attack by New York Times reporter Adam Liptak on the Supreme Court, as it waits to hear a case important to liberals. With a vital decision looming on Obama-care, Liptak last week wrote a front-page story on the results of an unusual poll question from the Times asking people what they thought of the Supreme Court. Liptak linked the public's alleged disdain of SCOTUS to two conservative decisions, including Citizens United, a free speech victory loathed by the left and in the Times that allowed corporations and unions to donate unlimited amounts to campaigns.
Liptak devoted his latest "Sidebar" to another judicial side issue involving liberal opposition to the Citizens United decision: "Unsigned Opinions, And Citizens United."
At their private conference, the justices of the Supreme Court are scheduled to decide Thursday whether and how to take a second look at the Citizens United campaign finance decision.
The usual odds that the Supreme Court will agree to hear a case are about one in a hundred. This one is pretty much a sure thing.
The justices have already temporarily blocked a lower court decision in the case. In that decision, the Montana Supreme Court seemed to defy the higher court by saying that a state law regulating corporate political spending was constitutional notwithstanding Citizens United. Two dissenting State Supreme Court justices said they would have liked to vote with their colleagues but did not believe they were entitled to ignore the United States Supreme Court.
Liptak doesn't expect the Supreme Court to have changed its mind.
The main question on Thursday, then, will be how the court will reverse the Montana decision. It could call for briefs, set the case down for argument in the fall and issue a decision months later. Or it could use a favorite tool of the court led by Chief Justice John G. Roberts Jr. -- the summary reversal.
Nine times so far this year, the court has issued an unsigned opinion ruling on the merits of a dispute without full briefing or oral argument. Such rulings have been the subject of criticism from practitioners and the legal academy. These critics say it is a mistake to resolve cases without adequate information and deliberation. It is also problematic, they add, to do so anonymously.
The latest critique arrived this month in The Tulane Law Review in an article by Ira P. Robbins, a law professor at American University. It was called “Hiding Behind the Cloak of Invisibility,” and it considered “per curiam” opinions, ones issued “by the court” without indication of authorship. “In the first six years of Chief Justice Roberts’s tenure,” Professor Robbins wrote, “almost 9 percent of the court’s full opinions were per curiams.”
Liptak finally lets us indirectly figure out that this a liberal beef with the court:
Two of the current term’s unsigned summary reversals were followed by dissenting opinions, both times from three members of the court’s liberal wing. In one of them, reinstating a California woman’s conviction for shaking her grandson to death, Justice Ginsburg quarreled with both the result and how the court chose to get there.