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Per curiam dismissal in criminal contempt case

In a per curiam order on Monday, the Court dismissed Robertson v. United States ex rel. Watson (No. 08-6261) as improvidently granted, thereby declining to decide “[w]hether an action for criminal contempt in a congressionally created court 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.”  [You can read my preview of the case and recap of oral argument here and here.]

Chief Justice Roberts dissented from the dismissal, in an opinion joined by Justices Scalia, Kennedy, and Sotomayor.  The Chief Justice would have addressed the “important threshold issue” of whether Watson could bring criminal contempt charges in her own name: “The answer to that question is no.”

Citing (among others) Blackstone and Locke, the Chief Justice emphasized that “[o]ur entire criminal justice system is premised on the notion that a criminal prosecution pits the government against the governed, not one private citizen against another.”  As such, a private prosecution would not only run contrary to our broad constitutional tradition, but it would also create more particular constitutional dilemmas.  For example, because the guarantees of the Fifth and Sixth Amendments apply to “any criminal case” and “all criminal prosecutions” and the Bill of Rights does not apply to private actions, how would those constitutional protections operate in a private criminal proceeding?  To illustrate what he regarded as the absurdity of the idea, Chief Justice Roberts posed the question whether a private prosecutor could interview a defendant without giving the Miranda warnings, or withhold exculpatory evidence in contravention of Brady.  The Chief Justice also criticized the conclusion by the D.C. Court of Appeals that criminal contempt was a “special situation” which allowed for private prosecution, emphasizing that the lower court erroneously relied on a dissent by Justice Blackmun in United States v. Dixon.  The Department of Justice was similarly a target of the Chief Justice’s criticism:  he emphasized that although the Solicitor General had properly abandoned that argument at the Supreme Court, the government nonetheless “bears some responsibility for leading the court below astray.”  Thus, the Chief Justice would have answered the narrow question on which certiorari was granted and remanded the case to allow the remaining issues to be addressed.

Justice Sotomayor wrote a very brief separate dissent, joined by Justice Kennedy, to emphasize that “the narrow holding [that the Chief Justice] proposes does not address civil contempt proceedings or consider more generally the legitimacy of existing regimes for the enforcement of restraining orders.”