485 U. S. 693
May 2, 1988
The Providence Journal newspaper published documents that a District Court had forbid them from publishing. The paper was then held in contempt for violating the court order, but a higher court held that the order was invalid under the First Amendment. The Supreme Court originally intended to decide whether the paper could still be held in contempt in spite of the underlying order’s unconstitutionality. Then, the whole case hit a huge snag. The Solicitor General had not approved of the appeal to the Supreme Court, and the law required his approval for all cases “in which the United States is interested.”
The Court ruled 6-2 that it lacked jurisdiction (Kennedy did not participate). Blackmun said that vindication of a court’s contempt power was certainly something which the “United States” was “interested” in. He rejected the argument that cases about the judicial branch, rather than the Solicitor General’s own executive branch, constituted something other than the interest of the United States. Blackmun did not want to see various branches of the federal government divided against each other in Supreme Court cases. He also rejected the reasoning that Young, by allowing courts to appoint prosecutors for contempt cases, also meant that court appointed prosecutors could bypass the Solicitor General in taking contempt cases to the Supreme Court.
Scalia concurred just to say that he still disagreed with Young’s holding about the power of courts to appoint prosecutors. Stevens, joined by Rehnquist, dissented by showing that the majority opinion, while it seemed to follow the plain statutory text, was badly out of step with history. Many times, contended Stevens, the legislative and judicial branches had not gone through the Solicitor General or Attorney General when coming before the Supreme Court – which strongly suggested that cases “in which the United States is interested” was limited only to those involving the executive branch.
I don’t really know who’s right here. It’s one of the trickiest cases I can remember.