June 01, 2004
For a Supreme Court that takes a fairly expansive view of its own powers, the decision in Cheney v. U.S. District Court presents an interesting exercise in restraint. On the one hand, the Court (by 7-2 vote) excoriated both the plaintiffs and the lower courts for litigation run amok, concluding that wide-ranging discovery requests approved by the District Court against the Vice President and senior administration officials were "anything but appropriate" and that any form of discovery in this civil case against a sitting President raised serious constitutional questions, especially where the discovery requests were tantamount to relief on the merits of the case. But on the other, the Court's decision did not address the merits of the Vice President's claim that application of the Federal Advisory Committee Act under the circumstances of the case would amount to a violation of the separation of powers. Instead, it merely ruled that the D.C. Circuit had improperly dismissed the government's petition for writ of mandamus on the grounds that a claim of executive privilege was a prerequisite to appellate jurisdiction, remanding the case for further consideration to the Court of Appeals. Nevertheless, the decision, cast in terms of the mandamus jurisdiction of a Court of Appeals, is a substantial victory for executive authority.