The Montana Supreme Court has decided that “that a state law regulating corporate political spending was constitutional notwithstanding Citizens United.” The US Supreme Court is expected to reverse that decision later this week. However . . .
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.”
Such opinions suggest that what they have to say is so simple and obvious that no serious judicial effort is needed. Yet not a few unsigned majority opinions have come with dissents. That combination — an unsigned majority decision and a signed dissent — was “an oxymoronic form, one that simultaneously insisted on both institutional consensus and individual disagreement,” Laura Krugman Ray, a law professor at the Widener University School of Law, wrote in 2000 in The Nebraska Law Review.
Prof Ray believes that this is a history-making case and that all “should sign on to what he or she subscribes to.” We agree. But we also fear that we are increasingly ruled by powerful cowards. We’ll see.