The nearly three-year fight over access to records of Vice President Dick Cheney’s energy task force came to the high court on Tuesday, with the Bush administration's top lawyer arguing that the Constitution gives presidents and vice presidents power to gather advice and make decisions without being forced to reveal every detail of how those decisions are made.
“This is a case about the separation of powers,” Solicitor General Theodore Olson told the justices at the start of lively arguments about privacy in White House policy-making.
The case reached the Supreme Court after a federal judge ordered what Olson called a broad, unconstitutional release of White House documents.
The White House is framing the case as a major test of executive power, arguing that the forced disclosure of confidential records intrudes on a president’s power to get truthful advice. Environmental and other interest groups claim the records will show whether the energy industry got special access or favors.
Justices were told that former Enron chairman Ken Lay and others were players, but until the government produces records, it won’t be clear if they actually drafted the government’s policies.
‘What happened at those meetings’
“The question is what happened at those meetings,” said Alan Morrison, the attorney for the Sierra Club.
The legal issues in the case have been almost overshadowed by a political controversy involving Justice Antonin Scalia. He has refused to step down despite a controversy over a hunting trip he took with Cheney, an old friend, weeks after the high court agreed to hear Cheney’s appeal.
Scalia took his seat behind the court’s high bench as usual Tuesday, and almost immediately posed a hard question to the administration lawyer. Since the case concerns whether outsiders influenced the outcome of the task force’s work, why not release voting records of the energy task force, Scalia asked.
Told that such a disclosure would raise privacy concerns, Scalia sounded skeptical.
“All I’m saying is, why would that be such an intrusion ... just to know whether anybody who voted on any of the recommendations was a nongovernment employee?” he asked.
But later, Scalia fired question after question at Morrison, at one point telling him his arguments were implausible.
The court is expected to rule by July.
Bush administration lost first two rounds
The case began in July 2001 when Justice Watch, a government watchdog group, sued over Cheney’s private meetings. The case has never gone to trial, but a federal judge ordered the White House to begin turning over records two years ago.
The Bush administration has lost two rounds in federal court. If the Supreme Court makes it three, Cheney could have to reveal potentially embarrassing records just in time for the presidential election.
Most of the talk among spectators who began lining up the night before was about Scalia, not the case.
“The big deal is Scalia,” said 23-year-old law student Peter Stockburger of Austin, Texas. “It was dumb that he went on the hunting trip. It was stupid, but it wasn’t illegal.”
Scalia had said he did not discuss the case with Cheney when they flew together on a government jet to Louisiana for the duck hunt at a camp owned by an oil rig services executive.
“If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined,” Scalia wrote in rejecting the Sierra Club’s request that he disqualify himself.
Judicial Watch and the environmental group Sierra Club want the task force papers made public to see what influence energy industries had in outlining national energy policy.
The Sierra Club accused the administration of shutting environmentalists out of the meetings while catering to energy industry executives and lobbyists.
Olson told the justices in court filings that no energy industry officials participated improperly in meetings.
Court a bastion of private deliberations
The Supreme Court also is known for private meetings.
“The court utilizes the process of confidential deliberation just as the executive branch does. Memos are drafted, deliberations occur and drafts of opinions are circulated — all behind closed doors,” said Kris Kobach, a constitutional law professor at the University of Missouri-Kansas City. “In both branches, deliberation is more candid, honest and valuable if it sometimes is sheltered from public scrutiny.”
Martin Shapiro, a Supreme Court expert at the University of California, Berkeley, said while the court engages in private consultation, “the justices are used to themselves making decisions on the basis of what they hear from two sides publicly.”
The case is Cheney v. U.S. District Court, 03-475.