Why the Supreme Court doesn't matter

Yes, I know, it actually does, of course it does. But sometimes the decisions that get handed down by this Court seem so odd that I sometimes wonder just how much worse it could get. This is a bit old, in fact from nearly two weeks ago, but I just came across it today and I think it's a real head-scratcher.

Jessica Gonzales of Castle Rock, Colorado, had obtained a restraining order against her estranged husband. But when he violated it, she kept going to the police in a vain attempt to get them to enforce the court's order.

Instead, Gonzales alleged, the police kept putting her off when she called them fearing that her estranged husband was a threat to the children, telling her to call back later rather than taking any action or even telling her there was nothing they could do.

In June, 1999, the husband killed Gonzales' three daughters before being shot and killed by police.

Gonzales sued the town, claiming the police violated the 14th amendment's due process guarantees by their refusal to make any serious attempt at enforcement. The 10th Circuit Court agreed with her. The town appealed to the Supreme Court, and on June 27 the Supremes overturned the Appeals Court and told her tough luck:

Justice Antonin Scalia, writing for a 7 to 2 majority, said that in order for her to prevail and possibly collect damages, Gonzales would have had to show that she had been denied a benefit guaranteed by state law, such as a welfare or employment benefit. Enforcement of the order, he said, would have to be a "protected entitlement."

But "Colorado law has not created a personal entitlement to enforcement of restraining orders," he said. Indeed, "it does not appear that state law truly made such enforcement mandatory" but rather gave police a considerable level of discretion in such matters.

Do you follow that? The Court ruled that because Colorado law does not specifically state that police have an obligation to at least make the attempt to enforce a court order, they have the "discretion" to ignore it completely and tell a woman who legitimately feared for the lives of her children to buzz off.

Stevens and Ginsburg dissented, but even their dissent was on the technical question of whether deciding if there was or was not a state law mandate for enforcement of the court order should have been left to a

"more qualified" court, the district court or the appeals court, which are closer to the state involved and traditionally consider the meaning of state laws within their jurisdictions.

I truly wonder: If instead of a restraining order on behalf of a woman who was threatened by her estranged husband, it had been a restraining order on behalf of a corporation which felt "threatened" by demonstrators, would the decision have been the same?