The long wait for the Supreme Court's ruling in Citizens United v. Federal Election Commission may soon be over. At the end of oral arguments Wednesday morning, the marshal of the Court announced the justices would return to the bench at 10 a.m. today -- a rare if not unprecedented Thursday session for the Court. Unless the Court really wants to pull a switcheroo on an anxious nation, the session will almost certainly be the platform for announcing the Citizens United decision on campaign finance regulation, which was argued in a special session Sept. 9 and appears to be the only pending case that would warrant such special arrangements.
Now that a Thursday session is planned, it's fair to ask: why not wait until Monday, when the Court was already scheduled to sit? It will be the third Monday of its argument cycle, when it will not be hearing arguments. One answer may point to possible multiple readings from the bench today. On third Mondays, when no arguments are scheduled, justices sometimes do not show up, having already packed their bags and headed off for travel during the period before the next session. If one or more of those justices had planned to read a dissent from the bench, they might have lobbied for a special sitting today before they left town. Justice John Paul Stevens, for example, may have already made plans to head to his Florida condo where he often spends his off-bench days. So Stevens may have a dissent to read -- or, perhaps, a majority opinion.
The special session also suggests that last-minute revisions may still be under way. Otherwise, it could be asked, why did the Court not release the decision during its regular session Wednesday?
The Court did issue three other noteworthy opinions Wednesday.
In Kucana v. Holder (pdf), the Court strongly affirmed the role of federal courts in reviewing removal or deportation orders in immigration cases. In the case before the justices, the 7th U.S. Circuit Court of Appeals had interpreted a federal law to find that it did not have jurisdiction to review Justice Department and immigration court decisions not to reopen deportation proceedings. The case involved the deportation of Agron Kucana, an Albanian citizen. Justice Ruth Bader Ginsburg, writing for the majority, cited "separation of power concerns" in determining that the executive branch should not have the power to limit the jurisdiction of the judiciary.
Wood v. Allen (pdf), new Justice Sonia Sotomayor's second majority opinion, upheld a death sentence in Alabama for defendant Holly Wood against a challenge based on ineffective assistance of counsel. Justice John Paul Stevens, joined by Justice Anthony Kennedy, said that a defense lawyer's failure to investigate "powerful mitigating evidence" was the result of "inattention and neglect."
In South Carolina v. North Carolina (pdf), a water dispute that came to the Court under its original jurisdiction, the Court said entities that are not states can, in some circumstances, intervene as parties. By a 5-4 vote, the Court said the Catawba River Water Supply Project and Duke Energy Carolinas had interests separate from the states and could intervene, but the city of Charlotte could not.
Chief Justice John Roberts Jr. dissented, voicing concern that the Court's original jurisdiction jurisprudence -- mainly lawsuits between states that are filed with the high court as first resort, not last -- could be altered in a "fundamental way" by allowing private entities to join the litigation as parties rather than as friends of the court. Original cases, he said, could be transformed "from a means of resolving high disputes between sovereigns into a forum for airing private interests."
In passing, Roberts gave a shout-out to the special masters who are appointed by the Court to gather the facts and make recommendations in these original cases. As we reported here, Roberts seemed to minimize the importance of special masters during oral arguments in the Carolinas case last October. He said their recommendations are not entitled to much deference and said the masters are more "more akin to a law clerk than a district judge." In today's dissent, Roberts said the Supreme Court is able to handle complex original cases "by relying on the services of able special masters, who have become vitally important in allowing us to manage our original docket. But the responsibility for the exercise of the Court's original jurisdiction remains ours alone under the Constitution."
This article first appeared on The BLT: The Blog of Legal Times.