Supreme Court & Miller...

From the SCOTUS blog comes this very interesting analysis from the Supreme Court's clerk:

05:56 PM Lyle Denniston Comments (0) TrackBack (3)

The Supreme Court on June 27 declined to hear two reporters’ contempt-of-court cases. The Court’s order led to one of the reporter’s jailing on Wednesday.

No one will know – at least not for a number of years, when some Justice’s private papers may reveal – why the Supreme Court refused to hear the appeals of New York Times reporter Judith Miller and Time magazine reporter Matthew Coope. They had been found in contempt for refusing to testify before a grand jury about confidential sources. Miller may wonder about that, in some of the private moments she now will be spending in jail. She was ordered confined on Wednesday by Chief Justice Thomas F. Hogan of U.S. District Court in Washington. Cooper apparently will testify, and thus avoid jail time.

According to Columbia Journalism Review (in an article conveniently available to help a prosecutor insist this week that Miller go to jail), the New York Times reporter’s lawyers were unhappy that more of the press did not join in enthusiastic support for her cause. But the record in the case can be read to suggest that the legal team never took some of the key steps it might have taken to show that the case was a big deal – or, at least, a matter of urgency. When it got to the Supreme Court, the dispute apparently did not detain the Justices very long before they denied it. They appeared to have examined the reporters’ appeals just once, then voted not to hear them. There no doubt are reasons.

The easiest reason to cite: since Justice Stephen G. Breyer did not take part (perhaps because of some investment he has), there was at least the prospect that the Court might not have been able to muster a majority to decide the case on the merits, even if granted. Had four Justices (the minimum needed) insisted that the Court hear the two appeals (Miller’s, 04-1507, and Cooper’s, 04-1508), there was the prospect of a 4-4 split on the merits. Thus, denial of review might have been a defensive gesture.
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