The Supreme Court has denied certiorari in the Ninth Circuit’s Mt. Soledad cross case, Trunk v. City of San Diego.
Justice Alito issued a separate statement regarding the denial of cert. Note that this is not a dissent from the denial of cert., but only a “statement.” In his statement, Justice Alito makes clear that he agrees with the decision to deny cert. at this time. The reason is the posture of the case. In the Ninth Circuit decision, the panel (in an opinion by Judge McKeown) had not required that the cross be removed. Instead, it had only required that the memorial in toto be modified so as to pass constitutional muster, in conformity with the approach the court laid out. Justice Alito wrote:
Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will berequired to take, I agree with the Court’s decision to denythe petitions for certiorari. Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of final judgment.
(footnotes and citations omitted).
I have mentioned this before, but if you have not read Judge McKeown’s Trunk opinion, you’d do yourself a favor by checking it out. One can agree or disagree with the outcome (I have my own disagreements with it), but I believe it to be a model of judicial craftsmanship and method. Or…just wait for next spring to see in greater detail why I think Trunk is an elegant and methodologically appealing decision!