Justices reject decision on Cheney panel

A U.S. Court of Appeals was out of bounds when it ordered Vice President Dick Cheney to reveal the inner workings of a White House energy task force that he headed in early 2001, the Supreme Court said yesterday.

But the high court’s 7-2 decision kept the case alive by ordering it back to a lower court for further hearings on whether Mr. Cheney is protected by executive privilege from handing over his records.

In a 21-page majority opinion by Justice Anthony M. Kennedy, the court said the Constitution recognizes “the paramount necessity of protecting the executive branch from vexatious litigation that might distract it from the energetic performance of its constitutional responsibilities.”

Justice Kennedy, who decided that a federal district court judge had not given the Bush administration demands appropriate deference and ruled mistakenly on the relevant law, was backed in his decision by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas, Sandra Day O’Connor, Stephen G. Breyer and John Paul Stevens.

A dissenting opinion by Justices Ruth Bader Ginsburg and David H. Souter said they would have affirmed the lower court’s ruling, which had ordered Mr. Cheney to turn over papers disclosing the makeup of his energy task force.

The two justices said, “The district court could accommodate separation-of-powers concerns short of denying all discovery or compelling the invocation of executive privilege.”

The case stems from suits filed by Judicial Watch, a government watchdog group, and the Sierra Club, an environmental organization. The suits argue that Republican operatives, lobbyists and energy-industry officials such as former Enron Chairman Kenneth L. Lay steered the administration’s energy policy not only as advisers, but as members of the task force.

The Sierra Club said the Supreme Court was “essentially ducking the issue by sending it back to a lower court,” and Judicial Watch said the ruling was “no victory for the Bush administration,” although the case will be delayed until past the November elections.

The case was overshadowed for a time by a series of developments outside the courtroom involving conflict-of-interest questions about Mr. Cheney’s friendship with Justice Scalia.

Justice Scalia had gone duck hunting with the vice president in Louisiana just weeks after the Supreme Court agreed to hear the case. The Sierra Club filed a motion demanding that he recuse himself, but the justice refused, saying no legally relevant questioning of his impartiality had been made.

He joined Justice Thomas in separate opinion that would protect Mr. Cheney from having to release his records at all.

U.S. District Judge Emmet Sullivan “clearly exceeded” his authority in ordering the administration to release records, Justice Thomas wrote for the two.

The case revolves around whether Mr. Cheney is legally bound to full disclosure by the 1972 Federal Advisory Committee Act, which requires government panels to conduct business openly, unless all members are government officials.

But the issue of who was a member or an adviser of the task force has been pushed aside by the Bush administration’s position that Mr. Cheney has executive privilege from disclosing his records — a position that hinges on the “separation of powers” section of the Constitution, which protects confidentiality in the highest rungs of the executive branch.

The separation-of-powers concerns were wrongly and hastily “dismissed” by the lower courts, Justice Kennedy wrote yesterday, adding that a U.S. Appeals Court had wrongly based its ruling on the 1974 Supreme Court ruling on President Nixon’s Watergate tapes.

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