News

Supreme Court Limits Access to Information About Cheney's Energy Task Force

(June 24, 2004) - Reversing two lower courts, the Supreme Court ruled today that Vice President Dick Cheney has a substantial right to secrecy regarding the operation of his "National Energy Policy Development Group," a government task force that several environmental organizations believe included industry executives and lobbyists as de facto members.

Despite the claims of Judicial Watch and the Sierra Club that the public is entitled to know about the operation of groups in which private citizens advise the government on policy issues, the majority opinion by Justice Anthony Kennedy in Cheney v. U.S. District Court found that the trial judge should not have required Cheney to make specific objections to the plaintiffs' "discovery" requests for information relevant to the case. Instead, said Justice Kennedy, the judge should have considered that the constitutional doctrine of separation of powers requires the judicial branch of government to protect high executive branch officials from burdensome litigation, including inquiry into their deliberations.

Cheney had argued that no discovery should be allowed, and the case should simply be dismissed because any judicial inquiry into the deliberations of the group would violate the separation of powers doctrine. The Supreme Court did not go that far, although it did rule that the judiciary must "afford Presidential confidentiality the greatest protection consistent with the fair administration of justice, ... and give recognition to the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties." The justices sent the case back to the Court of Appeals with an order to reconsider Cheney's broad objection to the discovery requests, without requiring him to assert individual objections to specific questions.

Justices Ginsberg and Souter dissented. They agreed that the discovery requests were too broad, but pointed out that Cheney had refused the trial court's invitation to make specific objections. Instead, Cheney insisted that the case be dismissed entirely, without any opportunity for discovery. In these circumstances, they said that the extraordinary remedy of having appellate judges step in to narrow the scope of discovery was unjustified.

Importantly, Ginsberg and Souter noted that the Supreme Court majority did not adopt Cheney's argument for outright dismissal of the suit. As The New York Times observed in April, this case raises "substantial issues about the degree to which a vice president can claim to be above the law."