The Supreme Court handed down only orders this morning, meaning the next possible time for it to release an opinion in Citizens United v. Federal Election Commission is early next year.

Several commentators, most notably John Elwood on Volokh Conspiracy and Tony Mauro for the Legal Times, have considered the possible reasons and consequences of the Court’s rather delinquent decision. earlier this year I took a look at the cases from OT07 that took longer-than-expected and the stats generally support what the pundits have said. The average number of days for an opinion is about 92. The longest opinions from OT07 were 202 and 232 days, respectively. US v. Williams took 202 days, split 7-2, and had three opinions. US v. Santos took 232 days, split 5-4, and had four opinions.

The case with the greatest number of opinions was Department of Revenue of KY v. Davis. It took 197 days, split 7-2, and had seven opinions (Souter(m), Stevens(c), Roberts(c), Scalia(c), Thomas(c), Kennedy(d), Alito(d)).

On the other hand, McConnell v. FEC took about 92 days, split 5-2, and had three majority opinions, three concurrences, and two dissenting opinions. Notably, the decision in McConnell was released on December 10, 2007, relatively early in the year for an opinion and not even on the last day for opinions before the break (another opinion was released on December 15)!

In my opinions, the number suggest that the Citizens United decision will be as far reaching as people expect but I think there will be far less division than the McConnell opinions. The Court could probably churn out an opinion in a week if each of the Justices was to simply write an opinion for himself or herself and the Court issue nine opinions. In an effort to fulfill some of his nomination pledges, the Chief Justice may be placing a greater emphasis on writing a majority opinion (that I expect he will write) that can drag along a majority for the crux of his argument.


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