The Court today issued unanimous or nearly unanimous rulings in a handful of low-profile cases. (See SCOTUSblog for more details.) Its only sharply divided ruling was its 5-4 decision to DIG (dismiss as improvidently granted) the writ of certiorari in Robertson v. United States ex rel. Watson, which presented the question whether an action for criminal contempt may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States. (In lay terms, the Court had initially granted review in the case and had held oral argument, but then decided that it was mistaken to have granted review.)
Chief Justice Roberts’s 12-page opinion dissenting from the DIG was joined by Justices Scalia, Kennedy, and Sotomayor. The Chief Justice goes beyond opining that the Court should have decided the case. He concludes that the answer to the question on which the Court granted review is that an action for criminal contempt may not constitutionally be brought in the name and pursuant to the power of a private person.
Given that the votes of only four justices are needed to grant review, I find it puzzling that the 5-justice majority voted to DIG the case. Indeed, given that Justices Kennedy and Sotomayor joined the Chief’s dissent, it would seem likely that there would have been five or more votes for the merits view that the Chief adopted. I’ll be interested to see whether someone following the case more closely offers a good answer to the question why the Court DIGged it.