This started out as a comment in another diary. It got a little longer than anticipated, and somewhat buried in the comment chain. As I'm interested in generating a slightly different discussion than was going on in that diary, I decided to post it here.
[edit: I should have had this in here from the beginning. Sorry for the lack of context.]
The Supreme Court of the US voted not to hear a case today, in which the plaintiffs were prevented from entering a public political event by volunteers for having a "no more blood for oil" bumper sticker on the car they showed up in.
SCOTUS denies cert
Ginsburg's dissent.
I am not an attorney, although I am studying to become one.
As far as I understand it, the Justices were saying were saying three things:
1. Part of the argument in favor of dismissing the suit was that the law wasn't sufficiently clear to know exactly how it applied in this situation, thus because of that uncertainty, there could be no liability for the defendants in the case. Ginsburg says, however, that Perry v. Sindermann, 408 US 593 (1972) stands for the proposition that that Government can not deny benefits in a way which violates the Constitutional rights of a person. Invoking the dissent at the lower level illustrates the point nicely: "solidly established law 'may apply with obvious clarity'even to conduct startling in its novelty." That is to say: just because an set of events is idiosyncratic, doesn't mean the law can't be determined in a given situation.
2. In the second part of the Ginsburg's dissent, she goes about distinguishing the current case with the previous decision relied upon as a basis for dismissing the suit. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 US 557 (1995)in Ginsburg's view, should not apply here. In that case, the plaintiffs were barred from a private event they sought to counter-demonstrate at. These plaintiffs were attending a public event; and they were not seeking to counter-demonstrate, just enter and observe. As Ginsburg has it, the situation in Hurley, and this, are different enough that the law established in Hurley not apply.
3. In the final section, Ginsburg grants that the privileged immunity issue, had it been invoked at the lower level, may have provided grounds to properly dismiss the suit. She mentions that suits against the actual public officials here are still pending, and may be the chance to really get at the meat of this issue.
As for why only 2 justices voted to grant cert in this case, I suspect that one or two of them will vote o grant cert in the other case, should they get the chance.
This leads into a topic I find fascinating, strategic choice at the Supreme Court. Consider the following:
Imagine you are a new Justice, with a firm belief in some obscure legal principal. A case which affords you the opportunity to enshrine your principal as inviolable bedrock comes before the court. It was disposed of below without really touching on your issue. You think that if the Court hears the case, they will decide it on your issue, and do so contrary to your firmly held belief. You should vote to deny cert. It is better for a lower ruling you disagree with slightly stand to be overturned at a later day with a more favorable bench, than for the highest court to squash your legal notion forever.
That's a pretty sparse example- however there is a good discussion of this kind of judicial politics by D. Marie Provine in Deciding what to decide: How the Supreme Court sets its agenda Judicature Vol. 64 Num. 7 pp 320-333.
In any event- thoughts?