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Supreme Court Watch

June 24, 2004 at 12:00 AM EDT


MARGARET WARNER: Two long-awaited rulings from the supreme court today on vice president’s Cheney’s energy taskforce, and the death penalty. In May 2001, Mr. Cheney’s taskforce issued a report filled with recommendations that critics said favored the energy industry.

Judicial Watch and the Sierra Club quickly filed separate suits to gain access to records of the panel’s meetings, arguing that the federal “open meetings law” applied because lobbyists and energy company executives had participated, along with government officials. Marcia Coyle of the National Law Journal is here to explain both of today’s rulings. Welcome back, Marcia.

MARCIA COYLE: Thank you.

MARGARET WARNER: Now the court didn’t actually take head on the major argument in this case. Today’s ruling really involved how this — these lawsuits should proceed.

MARCIA COYLE: Right, exactly. It was over this battle is in a very early stage of the lawsuit. It was over something called discovery, and that’s where each side asks the other for information or documents to help it prove its case.

MARGARET WARNER: And the lower court had allowed discovery to go forward.

MARCIA COYLE: It did, over the government’s objections. The government had taken a consistent position in the lower court all the way to the Supreme Court, that there should be no discovery, that separation of powers concerns were at play here and that the suit ought to be decided on the record as it existed.

MARGARET WARNER: And the discovery would have meant right away releasing at least the names who participated, I gather.

MARCIA COYLE: Yes, it did. In fact, the discovery requested was quite broad but it’s common in trials for your initial discovery request to be very broad because, as you know, it will probably be whittled down as you go forward.

MARGARET WARNER: Now discovery is, as you said, pro forma in lawsuits like these.

MARCIA COYLE: Yes, it is.

MARGARET WARNER: What did the majority, the seven-member majority say in declaring that the lower court had erred in allowing the discovery to go forward.

MARCIA COYLE: Well, what happened here is the government, once discovery was ordered, leapfrogged over the district court to the U.S. Court of appeals for the District of Columbia and asked that appellate court to issue an extraordinary order saying there can be no discovery. The case should be decided as it is and the vice president should be dismissed from the suit. The supreme court today said basically, well, yes and no. The court felt that, yes, the discovery here is quite broad but the lower court did not fully consider the separation of powers concerned here. The government had argued that this — that the information being requested was very intrusive and that the executive branch needs confidential communications in order to do its job, so the majority opinion written by Justice Kennedy directed the court of appeals to go back and reconsider the separation of powers concerned.

MARGARET WARNER: Now Justices Ginsberg and Souter dissented. What was their argument?

MARCIA COYLE: Justice Ginsberg wrote the main dissent and she wrote it from the bench which is an indication of how strongly she felt. She felt that the court was unnecessarily stepping in at this stage, that the lower court, the trial judge, was fully capable of deciding whether discovery was too broad and that the appellate court had the separation of powers concerns well in mind when it refused to issue the extraordinary order, so basically there’s winning and losing on both sides. The government does get some delay. It gets its concerns about the separation of powers weighed again and the other litigants will — they live to fight another day. This discovery battle will go on.

MARGARET WARNER: Now Justice Scalia’s role in this entire case has been controversial over conflict of interest concerns. Remind us, first of all, briefly what those were about.

MARCIA COYLE: He went duck hunting with Vice President Cheney right after the court agreed to decide this case. There were numerous editorials calling for him to recuse himself, at least because of the appearance of bias. The Sierra Club moved formally for him to recuse and in really an unprecedented 21-page opinion he said he did not think a reasonable person would think he was biased because of a duck hunting trip.

MARGARET WARNER: Now Justice Scalia, didn’t he join in a concurring opinion which does give a hint to where he is on the bigger issue of this case?

MARCIA COYLE: He did. He joined justice Thomas who concurred and dissented. They felt that the district court, the trial court here, overstepped its authority and that the appellate court should have issued the order.

MARGARET WARNER: So, in other words, he was signaling that he basically agreed with the government’s position.

MARCIA COYLE: Yes, he favored the government’s position.

MARGARET WARNER: Now what has to happen now? What do the lower courts have to do? What do they have to do that they didn’t do before? Again taking up this discovery request?

MARCIA COYLE: It will start at the court of appeals level, and the court of appeals is going to have to decide again whether it should issue that extraordinary order halting discovery, dismissing the vice president, but it must consider the separation of powers. Many who observed the case say that it will probably return to this trial court, that the court of appeals will send it back, and as Justice Kennedy suggested, the answer here may be for the trial judge to simply narrow the discovery order.

MARGARET WARNER: So it may go down two levels.

MARCIA COYLE: It’s going to be quite a while, yes. It may go down two levels, and it will probably last beyond the election which for some of those interested in this for political purposes would be unhappy because they wouldn’t know the answer, was this task force dominated by energy company officials.

MARGARET WARNER: Now let’s turn to the death penalty case. In 2002 the court ruled that only juries can impose the death penalty, but today it said, well, there are 100 death row inmates sentenced by judges that are out of luck.


MARGARET WARNER: What was their argument and reasoning?

MARCIA COYLE: The question before the court was whether that opinion two years ago had retroactive effect. The court has a very complicated procedure for complicated procedure for deciding retroactivity, but most Supreme Court decisions are not retroactive, particularly if it’s a procedural versus a substantive decision. Here the majority of — a 5-4 majority led by Justice Scalia said it was a procedural rule that they announced, but that it wasn’t a watershed procedural rule, that implicated the fundamental fairness and accuracy of the criminal proceeding, so it was not retroactive.

MARGARET WARNER: So these 100 inmates who were caught in this, I don’t know, time warp, they are now just totally out of luck.

MARCIA COYLE: They are. There was a dissent. Justice Breyer disagreed with the view that this was not a watershed ruling, and he said that the ordinary person will find it difficult to understand that two individuals convicted, sentenced under unconstitutional proceedings, one will go to his death, the other will be saved, simply through an act of timing.

MARGARET WARNER: So where does this leave, we’ve had this sort of ongoing evolution of the Supreme Court looking at death penalty cases, where does that leave this?

MARCIA COYLE: This basically will apply to those 110 death sentences, but the court continues to examine the death penalty. Next term we have a case involving the constitutionality, again, of the death penalty for juveniles.

MARGARET WARNER: And that’s the — but this was the only case this term?

MARCIA COYLE: On — no, it wasn’t the only death penalty case, but it was the only case involving the role of judges and juries. The court will continue, I think, to look at how judges and juries impose sentences. There was a second case today4 re the court reaffirmed that juries have to play the key role in deciding whether sentences can be bumped up from what the law lays down for a particular crime.

MARGARET WARNER: Marcia, thanks again.

MARCIA COYLE: You’re welcome.