The justices would like these guys to agree to disagree at a safe distance. Photographer: Chip Somodevilla/Getty Images
The justices would like these guys to agree to disagree at a safe distance. Photographer: Chip Somodevilla/Getty Images

Did the Secret Service systematically collude with President George W. Bush’s advance team to keep protesters away from the president’s routes and appearances under the guise of security? We’ll probably never know, now that the Supreme Court has blocked the lawsuit that would have set off an investigation. The 9-0 decision was so artful that it almost hides its inherent conflict of interest. The underlying reality seems to be that the justices, who have their own U.S. Marshals Service bodyguards and are sometimes met with protests, instinctively sided with the Secret Service -- and wanted the case to disappear.

The lawsuit began with seemingly minor events in Jacksonville, Oregon, in October 2004, when Bush was running for re-election. Anti-Bush protesters and pro-Bush supporters were gathered in town waiting for the president to arrive and spend the night. A last-minute change of schedule led Bush to the dining patio at the Jacksonville Inn. According to the protesters, the Secret Service moved them two blocks away, a block further than the pro-Bush group. The protesters filed suit alleging viewpoint discrimination in violation of the First Amendment.

The U.S. Court of Appeals for the Ninth Circuit at first thought the facts in the complaint weren’t enough to constitute a violation, and dismissed. But the protesters refiled, this time alleging a systematic policy of Secret Service discrimination against anti-Bush protesters. The centerpiece of their case is a White House manual that instructed the president’s advance team to “work with the Secret Service and have them ask the local police department to designate a protest area where demonstrators can be placed; preferably not in view of the event site or motorcade route.”

The court of appeals thought this evidence changed things, and allowed the suit to proceed. And yesterday the Supreme Court reversed in an opinion by Justice Ruth Bader Ginsburg -- and it did so with a slipperiness that showed serious thought had gone into the reasoning.

To sue government agents, a plaintiff has to get past what’s called the agents’ “qualified immunity.” That meant in this case showing that under clearly established law, the agents should have known they couldn’t legally do what they did. Ginsburg’s first move was to characterize the plaintiffs’ claim to be that the agents should have known under clearly established law that they had to place protesters and supporters equidistant from the president.

Framed this way, the plaintiffs’ claim had to fail. There was no legal principle clearly on the books telling the Secret Service exactly where to put protesters.

But of course, this wasn’t the protesters’ best or strongest claim: they were alleging that they had been victims of systematic discrimination against anti-Bush protesters, which would violate clearly established law that says the government can’t discriminate by viewpoint. If the Secret Service had actually been coordinating with the Bush advance team, that would have violated the protesters’ free speech rights.

Ginsburg’s opinion then got more subtle still. It said that a map furnished to the court “undermines” the argument that political viewpoint was the “sole reason” for moving the protesters. Notice that Ginsburg never quite said that politics couldn’t have been a main or motivating force -- just that there could also have been security concerns involved in this situation.

Ginsburg said the same when considering the White House manual: “Even accepting as true the submission that Secret Service agents, at times, have assisted in shielding the President from political speech, this case is scarcely one in which the agents acted without a valid security reason.” Ordinarily, a plaintiff’s allegations are accepted as true for the sake of argument when deciding to block his suit from proceeding. Ginsburg was saying that even if the Secret Service did violate the First Amendment, the suit couldn’t go forward because there were also security reasons asserted by the agents.

Why did a liberal lion such as Ginsburg -- and all her colleagues of all stripes -- adopt this doubtful reasoning, which the lower courts rejected? The best theory is that the justices instinctively feel different about Secret Service protection than do their less august judicial brethren on the federal district and appellate courts.

Trial and appellate judges live more or less like regular people. Unless a lot of them are gathered, they have no bodyguards or special protection. They drive themselves to work. When they give speeches, they are very rarely met with public protests. They are, in fine, mostly anonymous. Ask yourself: How many federal judges who aren’t on the Supreme Court can you name?

The Supremes are different. The U.S. Marshals assign them armed bodyguards who drive them around, accompany them on trips, and follow nearby if they are running or biking. When the justices show up to speak on campuses, protests aren’t unknown. Security needs to vet venues and locations. Today the justices are minor celebrities. Once the court’s arguments are televised, which will no doubt happen during the careers of the younger sitting justices, they will become better known still.

Being protected and protested 24-7 changes your perspective. The justices want federal bodyguards to have plenty of leeway in dealing with protesters. Indeed, although they might not admit it to themselves, the justices wouldn’t be human if they didn’t want to insulate themselves from negative protests.

Blocking the investigation into the Secret Service’s coordination with political advance teams is bad for free speech. But it’s good for the justices themselves. And conflicts of interest make bad law.

To contact the writer of this article: Noah Feldman at noah_feldman@harvard.edu.

To contact the editor responsible for this article: Tobin Harshaw at tharshaw@bloomberg.net.