United States v. Providence Journal Co.
Headline: Court dismisses Supreme Court review and bars a court-appointed prosecutor from representing the United States, preventing reinstatement of a contempt judgment against a newspaper after the Solicitor General refused authorization.
Holding:
- Requires Solicitor General authorization before court-appointed prosecutors represent the United States at the Supreme Court.
- Limits attempts to reinstate contempt judgments on Supreme Court review without Justice Department approval.
- Centralizes control of U.S. positions in Supreme Court cases to the Solicitor General’s office.
Summary
Background
A son sued the FBI, the Justice Department, a newspaper, and a TV station to stop publication of logs and memoranda from illegal electronic surveillance. A district judge issued a temporary restraining order against publication. The newspaper published anyway. A contempt motion followed; the private prosecutor William Curran was appointed when the United States declined to prosecute. The district court found the newspaper and its editor in criminal contempt and imposed fines and probation; the First Circuit reversed and modified the ruling en banc. The private prosecutor then sought Supreme Court review.
Reasoning
The core question was whether a court-appointed private prosecutor could represent the United States before the Supreme Court without the Solicitor General’s permission. The Court read 28 U.S.C. §518(a) and related rules to mean that the Solicitor General (or a designee) must conduct Supreme Court litigation “in which the United States is interested.” Because the special prosecutor had no Solicitor General authorization to file or argue the petition, the Court ruled he lacked authority to appear for the United States and dismissed the previously granted writ of certiorari for lack of jurisdiction.
Real world impact
The decision stops a court-appointed private prosecutor from carrying a criminal contempt claim to the Supreme Court when the Solicitor General withholds authorization. It strengthens central control by the Solicitor General over which federal matters proceed here and limits a district court’s practical ability to secure Supreme Court review through a privately appointed prosecutor. This ruling is procedural, not a final decision on the underlying contempt or on publication rights.
Dissents or concurrances
Justice Scalia joined but questioned the district court’s inherent power to appoint prosecutors. Justice Stevens (dissenting) argued historical practice and congressional action allow branches other than the Executive to have counsel in such cases and objected to an exclusive reading of §518(a).
Opinions in this case:
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