In Cheney case, court reviews executive power

It is fairly certain there won't be any ducks in the main hall of the US Supreme Court Tuesday. But that doesn't mean some folks won't be listening carefully during oral arguments for a quack or two.

On the docket is a case seeking public disclosure of information about Vice President Dick Cheney's national energy task force. The dispute is an important election-year test of how much the White House can shield the executive branch from public, congressional, and judicial scrutiny.

But it is perhaps best known as the case behind the controversy over a Louisiana duck hunting trip in January attended by Mr. Cheney and Justice Antonin Scalia, among others. The disclosure of the trip sparked a national debate about the propriety of judges vacationing with those who have cases pending before them.

It prompted the Sierra Club, one of the parties to the energy task-force litigation, to formally request that Justice Scalia step down from the case. He refused, insisting that mere social contacts between justices and senior government officials do not undermine a jurist's impartiality.

Nonetheless, Tuesday, as the high court takes up the vice president's case, there will be two matters before the court. The first relates to the task-force litigation, the second relates to the credibility of Scalia and the high court itself in the wake of the duck-hunting controversy. "Obviously people will be watching Scalia closely in his questioning during oral argument," says Jonathan Turley, a constitutional law professor at George Washington University School of Law. But the scrutiny won't end there, he says.

"Whatever decision he makes [in the Cheney case] is likely to be read through the lens of suspicion," Mr. Turley adds.

If Scalia votes in favor of Cheney, some will believe it is a result of Scalia's personal relationship with the vice president, Turley says. While if he votes against Cheney, some will question whether Scalia is overcompensating in an attempt to clear his name.

"Either way, justice will hardly be served by Justice Scalia in this case," the professor says.

Even without the extra attention from the duck-hunting trip, the energy task-force case is potentially one of the most significant of the term. At issue: the extent to which the Constitution's separation of powers doctrine entitles the White House to operate in secrecy - beyond the prying gaze of the public, Congress, and even the courts.

The White House position is a version of the same separation of powers argument being used to justify expansive presidential powers to detain enemy combatants and insulate those determinations from judicial oversight.

In the Cheney case, the justices are being asked to decide whether a federal judge and an appeals court panel acted properly when they ordered the White House to disclose internal documents related to the development of the Bush administration's energy strategy back in 2001.

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