If, like most Americans, you were fixated on the Supreme Court’s health care decisions, you may have missed another noteworthy decision issued last week. In American Tradition Partnership v. Bullock, the Court summarily reversed the Montana Supreme Court’s decision to uphold a state law limiting campaign spending by corporations and unions on state and local elections.
I found this case interesting for two reasons. First, the Court rarely decides cases by summary reversal. As Stern, Gressman, and company explain in their outstanding Supreme Court Practice guide, “The most controversial form of summary disposition is a per curiam opinion that simultaneously grants certiorari and disposes of the merits at some length, discussing both the facts and the issues involved.” The Court's decision to summarily reverse a case in this manner is controversial, the guide continues, because “[t]he parties are given no opportunity to file briefs on the merits or to argue orally before the Court.”
In addition to the controversy surrounding the Court's use of summary reversals, Bullock is also noteworthy because, while the nine justices issued their opinion per curiam (i.e., unsigned, from the Court as a whole), Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, issued a dissenting opinion. At first glance, this may seem particularly odd because it only takes four votes to grant certiorari. If the four members of the Court’s liberal bloc disagree with the majority opinion in Citizens United, as they clearly do, why didn’t they vote to grant certiorari? The “defensive denial” theory offers a compelling answer to this question.
A defensive-denial scenario arises when four justices desire to see a particular outcome on the merits in a case in which a cert. petition is pending before the Court. Where the four justices who would otherwise like to review the case fear that doing so would lead the majority to reach an undesirable outcome on the merits, they will instead “defensively deny” certiorari.
The Court’s summary reversal in Bullock provides a nice illustration of this theory in action. In Bullock, the petitioner asked the Court to decide whether its decision in Citizens United v. FEC striking down a federal limitation on corporate campaign spending applied to a similar state law in Montana. “There can be no serious doubt that it does,” the Court’s single-page opinion concludes. As such, the Court simultaneously granted certiorari and struck down the Montana law without briefing or oral argument.
In their dissenting opinion, the four liberal justices express their disagreement with the Court’s holding in Citizens United. “Were the matter up to me,” Justice Breyer writes, “I would vote to grant certiorari in order to reconsider Citizens United or, at least, its application in this case.” As I noted above, the four dissenting justices could have voted to grant certiorari, in which case the Court would have reconsidered Citizens United after briefing and argument. So why didn’t they? Justice Breyer's dissent provides the answer: “I do not see a significant possibility of reconsideration” by the conservative majority.
In other words, Justice Breyer and his dissenting colleagues likely recognized that, had they granted certiorari in Bullock, the conservative majority would have simply issued a full opinion on the merits reinforcing its decision (at greater length and in more detail) in Citizens United. To avoid that outcome, the dissenting justices voted defensively to deny certiorari.