Alito's strategic denial of Certiorari statements-2012 and 2014

June 30, 2012

Revised July 2, 2014.

Justice Alito in the face of all logic and ethics, has written a second statement (2) on denial of certiorari, still claiming that the case is not ripe, even after twenty five years of litigation and the case being returned to the District court for possible compromise after the Supreme court rejecting the case two years previously.  District Judge Larry  A.. Burns after this failure of compromise ordered the Cross to be removed, stayed subject to outcome of appeal,  in an attempt to finally settle this issue "once and for all."  The veterans group suing to retain the cross could have requested a review by the appeals court, but knowing that this court is supporting the position for compromise or removal, they chose to go directly to the Supreme Court. (see this link for my essay on the effect of this delaying tacktic)

Samuel Alito, as a citizen of the United States, has every right to argue for preserving the 42 foot tall Latin Cross on publicly owned property on Soledad Mountain in San Diego. I have good friends who feel just the way that he does, that the Cross provides comfort, a confirmation of the strength of their religious beliefs, and other feelings that make them angry at those who want to see it removed.

"Why can't those atheists just leave well enough alone?" and "Don't we have other things more important than worrying about a cross?" These are what these people say to me. Others, some in public such as talk radio are more confrontational, even threatening. Let me quote from this article from  the most read San Diego columnist, Logan Jenkins:

Of grave importance to San Diego County, the high court decided Monday that an appellate court’s ruling — which held that the Soledad cross is, at its core, unconstitutional — has not run its course. In other words, the case is half-baked. More agony needs to be endured, quixotic attempts at compromise must be exhausted, before the Supreme Court might feel compelled to rule if the landmark cross is, at its essence, an exclusive Christian symbol signaling preference for one religion or an inclusive memorial symbol within the pale.
Logan and I have had a decade of dialogue over his views, and after some prompting a year ago wrote an article where he agreed that the Cross should be replaced by something more ecumenical, "A cross we don't have to fight over." But he made the same error in this recent article that others made in the media, thinking that Justice Alito's gratuitous statement defined the actions of the Supreme Court. He continues, elaborating on the violence caused by Alito's intervention

Of course, this distinction is, at its essence, sophistical. The divine and the secular meanings of the cross/memorial are so fused they’ll never be separated to universal satisfaction. They form a Gordian knot that will never be cut without violence. Yes, blood may run down Via Capri if the cross is bulldozed by court order. “Roger Hedgecock would chain himself to the cross,” predicted Bill Kellogg, the even-keeled president of the Mount Soledad Memorial Association.

The violence that Logan and Kellogg predict has become more of a potential reality because of one individual's three page letter. While Mr. Alito has all the expansive rights of any individual to advance his personal goals, when he dons those black robes the world makes the assumption that he is speaking for this institution. His statement on the Cross is thus reported widely as the sense of the court, as exemplified by this story by the legal branch of the social conservative movement.

First is to make clear that Alito was only speaking for himself, that his statement is no more than his personal spin, see this definition from this official Supreme Court site.

The opinions included here are those written by individual Justices to comment on the summary disposition of cases by orders. Such an opinion might, for example, dissent from the denial of certiorari or concur in that denial

Here is his personal statement on Monday's refusal of the court to grant certiorari, meaning to review the Ninth Circuit Decision that the 42 foot high Latin Cross on Federal land is unconstitutional. In this statement he references this one by Justice Clarence Thomas, on a very similar establishment clause case that also pointed out the subjective nature of jurisprudence, of precedent on this area of constitutional law. There is one major difference between the two, one that is so subtle, yet so pernitious, that it has not been explored before this essay.

 While both manifest the same sentiment in their respective cases, disagreeing with an appeals court decision that would have removed a cross from public land, they took opposing positions towards the Supreme Court's refusal to grant certiorari, the first step in overruling this decision. Thomas acknowledged this disagreement, that he was in the minority of the court on his views, by describing his personal statement as a dissent from the refusal of certiorari. Alito, stating that he concurred with the denial, while giving no indication of his long standing position that could only be achieved if the court had accepted the case for review.

Alito, while not explicitly writing that his statement was that of the majority, must have realized that it would be construed as such. His statement may, in fact, represent the views of other justices, or even a majority, or as evidence presented here indicates, it probably does not.  If it turns out that he has correctly characterized the rationale of his colleagues, my criticism shifts from him personally to the entire court, and those members who allowed this biased statement to be released without rebuttal; and that also allowed the eighteen months of delay on issuing the refusal of certiorari, something so obvious according to Alito that it could have been disposed of in weeks.

In this case, delay is in the service of those who want to retain the dominant Christian symbol of the cross.  It is in the nature of "facts on the ground," the same principle that makes the reality of Jewish settlements in the West Bank more resistant to removal with each year that they remain.  It becomes established in the minds of people, some from their earliest memories.  Such "facts on the ground", whether symbolic as the cross or material, as houses, become established by the length of their existence.  The fifty one page opinion of the unanimous ninth court decision, while a precise and sensitive exposition on the long saga, is not widely read,  even by those who write newspaper articles; while the majestic cross continues to stand for all to see.

Alito's statement has effectively shed doubt that the refusal to grant certiorari meant, "case closed." which is exactly what it did mean, as it has for all of the thousands of such refusals by the Supreme Court over the years. I would welcome anyone to go the the link and read the three page statement, which is really a reiteration of the defendants and amicus briefs to retain the cross. One paragraph of Alito's statement deserves special critical analysis:

The current petitions come to us in an interlocutory posture. The Court of Appeals remanded the case to the District Court to fashion an appropriate remedy, and, in doing so, the Court of Appeals emphasized that its decision “d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial].” 629 F. 3d, at 1125. Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will be required to take, I agree with the Court’s decision to deny the petitions for certiorari.
"Interlocutory Posture" has this precise legal meaning " A temporary order issued during the course of litigation" which since the particular litigation of the appeals court was long completed is used figuratively. And in reality, no litigation is ever over. New evidence may be uncovered, new court decisions may intervene, the mandated order may not be followed.......His mentioning further petitions to the Supreme Court implies that this is the exception showing the central issue is still open.

 The court of appeals decision was interpreted by the defendants, the Department of Defense, who now owns the site, as represented by this DOJ brief, along with an Amicus Brief representing thirty four of the congressional sponsors of the relevant law, as being perfectly ripe, that the pending decision of the ninth circuit was definitive as to the gravaman of the case, that the latin Cross that is now the singular element of the memorial, must not remain.  Every group that urged retaining the the cross argued that certiorari be granted.

 The exact words of the order by Judge Keown, author of the unanimous ninth court of appeals decision is:

We reverse the grant of summary judgment to the government and remand for entry of summary judgment in favor of the Jewish War Veterans and for further proceedings consistent with this opinion. REVERSED AND REMANDED

"further proceeding consistent with this opinion" does not mean that the district court shall design and impose on the parties to the litigation its own substitute memorial. It is an order, a precise order for an open process to reach a consensus "consistent with this opinion"  Alito is willfully misreading the order of the appeals court, and his colleagues. 

Since the first order by a Federal District Court Judge in 1991 that the cross was unconstitutional, every possible ploy has been used to subvert that one, and all of the decisions that followed. With the announcement of denial of certiorari on June 25, 2012, after twenty one years, one Jurist, Samuel Alito, by casting doubt on the definitive nature of this Supreme Court action finds another way to undermine juridical authority .  Based on letters to the editor to the major daily newspaper, the very one that had stoked resistance to removing the cross for decades, the public sentiment is turning around to accept what the ninth circuit has mandated and the Supreme Court affirmed-that the Cross should be replaced.

Samuel Alito's casting doubt on the definitive nature of these recent actions by federal courts of appeal should be condemned for conflating of personal advocacy with the administration of justice. It represents the debasement of our courts and worse, it has the effect of fomenting the very internecine hatred that the establishment clause of the constitution was crafted to prevent.


J. Alito's Statement (also linked in text)  on denial of cert  6/25/2012 page 18 - 20

J. Alito's Statement on denial of cert  6/30/14 page 11 of 11

 City of Greece v. Galoway

This was a case very similar to the above, on the fine points of establishment law applying to prayer at a city council meeting.   And like the above, the appeals court remanded the case to the district court with instructions to limit overt preference for Christianity.  This time the court did grant cert, even though the case was in the same "Interlocutory Posture"as the Soledad Cross case that they rejected.  My conclusion, is that Alito's explanation, being the same for both cases, could not have been the reason for denial, rather the tradition explanation that it reflected agreement with the appeals court is supported.  Alito letter can only be understood as further delaying a final decision that has gone over two decades.