Inside baseball, my feeling is that Scalia and Alito are lost causes, they represent the Opus Dei and nothing but, their anti-gay posture is guaranteed regardless of the facts of any case. Roberts and Thomas are more complicated, although both are also radical Catholic activists, one of them must have voted against granting cert. My guess is Roberts decided this was not a case he wanted.

As for your Charter issue, I don’t exactly know what it is, but it is up to DC to decide what it’s own laws are, so even if the DC Court’s decision was incorrect, it can’t be up to the Supreme Court to correct it. I can’t find Jackson’s petition, but it would not surprise me if it were completely frivolous – again, just like the jack@sses who argued that they had a constitutional right to keep petition names secret (which was slapped down 8-1).

I did say that on rare occasions, certain Justices will opt to make their dissent known. The two cases you cite above come out of a pool of about 16,000 rejected cert petitions in the 2006 and 2007 terms from which you drew your examples. We only learn the votes of those individual Justices who chose to make it known. Both cases are atypical in that they concerned broadly disputed issues of constitutional law (respectively, detainee due process and Takings), thus making a protest by one or more individual Justices more likely.

To recap: It is simply not the case that we “always” learn who dissented from the denial of cert, as you said above. On the contrary, we very rarely learn who dissented, and even then we might only glean an incomplete picture.

So in this case, the absence of a public dissent does not tell us that the vote was 9-0 to deny, and it does not tell us that all of the Justices concluded that Rev. Jackson’s case was without merit. On the contrary, the vote in the DC Court of Appeals was split, and Jackson had, IMO, a very good case on the Charter issue.

From the Oxford Companion to the US Supreme Court:

“If four justices vote in favor, cert is granted. This “rule of four” is an informal rule of long standing developed and adhered to by the justices. Cert votes are not made public. Some justices have recorded cert votes and left them in their private papers, but usually it is impossible to know how the justices voted. From time to time, a justice will feel strongly enough about a case to note publicly a dissent from the denial of certiorari. . . .Dissents from denial of cert are uncommon . . .”

07-1247
GOLDSTEIN, DANIEL, ET AL. V. PATAKI, FORMER GOV. OF NY
The petition for a writ of certiorari is denied. Justice
Alito would grant the petition for a writ of certiorari.

http://www.supremecourt.gov/orders/courtorders/062308pzor.pdf

06-1169
HAMDAN, SALIM A. V. GATES, SEC. OF DEFENSE, ET AL.
The petition for a writ of certiorari is denied. Justice
Souter, Justice Ginsburg, and Justice Breyer would grant the
petition for a writ of certiorari.

http://www.supremecourt.gov/orders/courtorders/043007pzor.pdf

Compare our case:

10-511
JACKSON, HARRY R., ET AL. V. DC BD. OF ELECTIONS, ET AL.

http://www.supremecourt.gov/orders/courtorders/011811zor.pdf

Politically, we were very well positioned here in DC: including faith community leaders in our legislative campaign, doing many months of grassroots voter contacts to dispel myths about same gender marriage, presenting hours of compelling testimony before City Council hearings, ensuring that people of color were visibly active and vocal, and the entire campaign was based on years of educating council candidates about the LGBT communities, electing them to office and working with their staffs to maintain an amazingly united (almost, 11-2) front. We were also fortunate to have the Democratically controlled US House and Senate on the Hill to derail attempts to violate the concept of District home rule. Given the Republican takeover in November, it was as it turned out, a very narrow window of opportunity in which to accomplish our victory–but it was achieved nonetheless.

I still would not have wanted to proceed to a ballot. It is conceivable, even probable that we would have won, but the campaign would have been ugly, divisive and expensive and a sad use of valuable and limited resources.

But we also owe a debt to the pioneers of District government who, back in the 1970s, were quite aware of the ways in which ballot initiatives could be used as instruments by a majority of voters to deny equality and justice to discrete, insular and despised minorities. They wisely safeguarded our human rights ordinance from just such tyranny. Today their foresight was vindicated by the Supreme Court’s denial of cert to Bishop Jackson and the plaintiffs, but it may have been a very close call. We should be very relieved and all sleep better tonight.

So really, big, big relief.

On the legal discussion: with one narrow exception, the denial of cert in this case doesn’t tell you anything about the Court’s view on marriage, gay rights, or federalism. First, contrary to what Junius Brutus says, individual votes to grant cert are not published when cert is denied. In fact, you rarely know what the vote is and who voted which way. (The only exception is when a Justice opts to write a dissenting opinion, which is rare.)

So the only thing we do know is that 4 Justices did not vote to grant. I assume that Scalia and Thomas voted to grant. So to my mind, the end result tells you that either Roberts or Alito or both, at the very least, do not share Scalia’s obsession with homosexuality. That is a small point, but one that can be fairly drawn from this result IMO.

Briefly, the denial does not speak to the Court’s view of the merits of the arguments on marriage or gay rights b/c the appeal would have been largely if not exclusively focused on the issue of the DC Council’s right to carve out an exception to initiative process set forth in the DC Charter.

It doesn’t speak to state/federal power issues as those are usually understood, b/c this case would have turned not on constitutional issues relating to federalism, but purely on statutory interpretation to determine Congressional intent vis a vis the District. If you want to see how dry and technical the case would have been, take a look at the DC Court of Appeals decision. It will cure your insomnia.

I don’t think we know whether Scalia or Thomas wanted to grant cert, only that there were not a total of four that wished to do so.