The Supreme Court has now decided the Montana Supreme Court’s effort to overturn or to constrain Citizens United. As many expected, the Montana Court has been reversed without having a formal briefing and argument.
The five justices who decided Citizens United also decided this case. The four dissenters included Justice Stevens’ replacement, Justice Kagan. The majority found the case to be uncomplicated:
The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2.
They refer to the Supremacy Clause: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
If judges in every state are bound by the Constitution and thus, the First Amendment, didn’t the Montana judges act contrary to their constitutional obligations?
The dissenters disagree with Citizens United and would have overturned it or allowed Montana to violate the First Amendment.
The party of government has long believed in the supremacy of the Supremacy Clause. For them moral progress is measured by increases in the scope and power of those who reside inside the Beltway. The four dissenters have found an exception to such centralization. No doubt their turnaround depends on new research into the meaning of the Fourteenth Amendment.
This decision should remind everyone that if one justice in the Citizens United majority leaves the Court, and President Obama selects his replacement, Citizens United will almost immediately be overturned.