High Court Backs Vice President

The White House has seen the case as a front in its battle to preserve control over internal information and to establish the principle that the president should be able to receive candid advice in private.

The Sierra Club and Judicial Watch maintain that the lobbyists' influence over Cheney's task force was so great that it was not a government policy commission, but a public-private advisory board including "de facto" members from industry. As such, the groups argued, the task force is required to disclose its proceedings under the Federal Advisory Committee Act.

The court did not rule on that contention yesterday, dealing exclusively with the issue of "discovery," meaning access to documents and testimony. In 2002, U.S. District Judge Emmett G. Sullivan ordered the White House to give the two organizations access to the task force records so they could try to substantiate their claims.

Rather than directly contest that order, Bush administration lawyers asked the D.C. Circuit to cancel it out through a writ of mandamus, a rarely granted order usually reserved for cases in which there is no alternative method of preventing a court from acting illegally.

Normally, an appeals court would not hear a challenge to a lower court's discovery order before it has been precisely formulated with input from both parties to the case. The D.C. Circuit invoked that rule in rejecting the request for mandamus.

But the White House appealed to the Supreme Court. Solicitor General Theodore B. Olson argued that because FACA is a disclosure law, granting the Sierra Club and Judicial Watch the right to look through the task force's papers would be tantamount to giving them a victory in the lawsuit itself.

In dissent, Justice Ruth Bader Ginsburg, joined by Justice David H. Souter, defended the D.C. Circuit's view of the case, noting that it had "abided by the ordinary rules of appellate jurisdiction."

Reading a summary of her opinion from the bench, a sign of especially strong disagreement with the majority, Ginsburg said that "this court has no cause to . . . fault the Court of Appeals for insensitivity to separation-of-powers concerns the Court of Appeals opinion showed it had well in mind."

The case is Cheney v. the United States District Court for the District of Columbia, No. 03-475.