A Slender Silver Lining on the Montana Decision

As you probably know by now, the Court tossed the Montana challenge to Citizens United, invalidating that state's century-old anti-corruption law. No surprise there. A shame, but no surprise.

But Rick Hasen at Election Law Blog makes an interesting point about Elena Kagan joining Stephen Breyer's dissent:

Before she was confirmed, there was a major question about whether she would have sided with the majority or dissent in CU, because she had written critically of the Austin case (which CU overturned) while a law professor...And although she wrote a strong dissent in the Arizona Free Enterprise case last year involving Arizona’s campaign finance law, that was all about corruption, and it was not clear how far she would go on the more direct question of ban on direct spending from corporate treasuries. But today, Justice Breyer, joined in full by Justice Kagan, endorses Justice Stevens’ dissent in CU...That means a strong and solid four justices ready to overturn Citizens United.

That is pretty important. So if Obama can get himself reelected, and then assuming eight years of a Hillary presidency, this is one we have hope of getting turned around. Assuming what?

Because once Romney loses, the GOP will contrive to go even crazier, and activists will decide they lost because they nominated a squish who didn't stand for anything. And sure, Jeb Bush will run, or what's his name, the egg-carton man from Utah, but they'll be squishes too, and the nominee will be the Embarracuda or some nutty governor, and the Clintons will move back into the White House.

I'm not actually kidding, but being more serious for a moment: This is a reminder of just how quickly and completely these Court politics can change. Flash of an eye, and bam, 5-4 one way becomes 5-4 the other way! Reading all this horrible news about these cranky reactionary billionaires gives one the impression that CU is here to stay, but in fact this news bit provides a hopeful reminder that it's not, that it could be turned around in a year or three, meaning that with any luck, 2012 will be only election conducted under its mephitic cloud.

Of course, this assumes that a Senate with at least 40 Republicans would permit a Democratic president to name a Supreme Court nominee, especially in a case when she were replacing a conservative. I honestly don't believe they would, provided they could get away with it. They understand very well how precarious their majority is, and how wobbly are its intellectual foundations.

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Michael TomaskySpecial Correspondent

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