With all this talk about the Court potentially DIGing (dismissing as improvidently granted) the Prop 8 case, today we have an opinion that split 5-4, with the conservatives voting to reverse, and the liberals voting to DIG. This is somewhat rare.
From Justice Ginsburg’s opinion, joined by Justices Breyer, Sotomayor, and Kagan in Comcast Corp. v. Behrend:
This case comes to the Court infected by our misguided reformulation of the question presented. For that reason alone, we would dismiss the writ of certiorari as improvi dently granted. . . .
Comcast’s forfeiture of the question on which we granted review is reason enough to dismiss the writ as improvi dently granted. See Rogers v. United States, 522 U. S. 252, 259 (1998) (O’Connor, J., concurring in result) (“[W]e ought not to decide the question if it has not been cleanly presented.”); The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 183 (1959) (dismissal appropriate in light of “circumstances . . . not fully apprehended at the time certiorari was granted” (internal quotation marks omit ted)). . . .
The oddity of this case, in which the need to prove damages on a classwide basis through a common method ology was never challenged by respondents, see Brief for Plaintiffs-Appellees in No. 10–2865 (CA3), pp. 39–40, is a further reason to dismiss the writ as improvidently granted. The Court’s ruling is good for this day and case only. . . .
Because the parties did not fully argue the question the Court now answers, all Members of the Court may lack a complete understanding of the model or the meaning of related statements in the record. The need for focused argument is particularly strong here where, as we have said, the underlying considerations are detailed, technical, and fact-based. The Court departs from our ordinary practice, risks inaccurate judicial decisionmaking, and is unfair to respondents and the courts below. For these rea sons, we would not disturb the Court of Appeals’ judgment and, instead, would dismiss the writ as improvidently granted.
When a problem comes along, you must DIG it. DIG it good!