Cite as: 529 U. S. 277 (2000)
Scalia, J., concurring in judgment
reference to the lower court's adverse judgment. It was careful to note—however illogical that might have been, see id., at 635—that the parties "remain[ed] adverse," and that jurisdiction was proper only so long as the "requisites of a case or controversy are also met," id., at 619, 624. Today the Court would appear to drop even this fig leaf.4 In concluding that the injury to Erie is "sufficient" to keep this case alive, the Court performs the neat trick of identifying a "case or controversy" that has only one interested party.
II
For the reasons set forth above, I would dismiss this case for want of jurisdiction. Because the Court resolves the threshold mootness question differently and proceeds to address the merits, I will do so briefly as well. I agree that the decision of the Pennsylvania Supreme Court must be reversed, but disagree with the mode of analysis the Court has applied.
The city of Erie self-consciously modeled its ordinance on the public nudity statute we upheld against constitutional challenge in Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991), calculating (one would have supposed reasonably) that the courts of Pennsylvania would consider themselves bound by our judgment on a question of federal constitutional law. In Barnes, I voted to uphold the challenged Indiana statute "not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not
4 I say "appear" because although the Court states categorically that "the availability of . . . relief [from the judgment below] is sufficient to prevent the case from being moot," it follows this statement, in the next sentence, with the assertion that Pap's, the state-court plaintiff, retains a "concrete stake in the outcome of this case." Ante, at 288. Of course, if the latter were true a classic case or controversy existed, and resort to the exotic theory of "standing by virtue of adverse judgment below" was entirely unnecessary.
307
Page: Index Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 NextLast modified: October 4, 2007