The Supreme Court building under going renovations in Washington, D.C. (John McDonnell/The Washington Post)

The Supreme Court will consider whether two Secret Service agents can be sued for allegedly hustling protesters out of earshot of a dining President George W. Bush while accommodating his supporters.

The incident took place in Jacksonville, Ore., where Bush made an impromptu decision to dine on Oct. 14, 2004. Two groups had assembled nearby: 200 to 300 people unhappy with the president joined together on the street and sidewalks immediately adjacent to the inn, while a group of Bush supporters gathered a block away.

But after the president decided to stay for a meal on the Jacksonville Inn’s patio, the protesters were moved to a location farther away, while the supporters stayed where they were. When the motorcade left, he drove past the supporters, but the protesters were not on the route.

Seven of them sued Secret Service agents Tim Wood and Rob Savage, saying the unequal treatment violated their free speech rights. Federal officials are generally exempt from being sued in their official capacities, unless they know the actions violate basic rights.

But a panel of the U.S. Court of Appeals for the 9th Circuit ruled in 2012 that the lawsuit could go forward.

The judges said the protesters deserved the chance to prove their allegations that it was a regular practice of Secret Service agents to put the president’s critics farther away than his supporters. In addition, they expressed concern about a “presidential advance manual” that told White House staff members to work with agents to set up protest areas that were “preferably not in view of the event site or motorcade route.”

“Our opinion makes clear that there is simply no apparent explanation for why the Secret Service agents permitted only the pro-Bush demonstrators, and not the anti-Bush protestors, to remain along the president’s after-dinner motorcade route,” Circuit Judge Marsha S. Berzon wrote.

The full appellate court declined to reconsider the decision, and seven judges signed on to a blistering dissent from Circuit Judge Diarmuid O’Scannlain.

“In effect, the panel holds today that the Constitution requires Secret Service agents to subsume their duty to protect the president to their newly created duty to act like concert ushers — ensuring with tape-measure accuracy that everyone who wants to demonstrate near the president has an equally good view of the show,” O’Scannlain wrote.

Solicitor General Donald B. Verrilli Jr. adopted a similar argument in asking the court to review the 9th Circuit decision.

In a typical year, the president makes hundreds of stops or appearances in public areas, he said.

“Such stops often require agents to make quick, on-the-spot decisions to safeguard the president in the presence of large groups of people,” Verrilli said in his petition to the court.

He said agents should not have to inquire about the political views of groups “to keep opposing groups at roughly equal distances from the president, even as his own location changes.”

The case is Wood v. Moss. It is likely to be argued in March.