Thursday, January 27, 2011
In yesterday's post, Neil O'Donnell pointed out that there is some precedent for Justice Scalia's "go away" jurisprudence in the realm of government contracting. It remains to be seen if that is the direction the court will go or if this new exercise of the Court's power to fashion equitable remedies can be reconciled with the views of Justice Scalia expressed in his recent concurrence, that the Court ought not to be inviting litigants to come to the Court so that it can tailor new remedies to meet the needs of each fact pattern that arrives before it.
However, The New York Times, in an editorial published on Tuesday, January 25, 2011, focused on the jurisprudence of the state secrets privilege (the SSP) rather than on that of government contracting. The Times editorial board expresses concern that the government can derive tactical advantages from its ability to invoke the SSP, a topic explored through the Herculean research efforts of our guest blogger Laura Donohue in The Shadow of State Secrets. Rather than simply telling the litigants to go away, the Times exhorts the Court to use this opportunity to rein in government use of the SSP:
The court should narrow the privilege to what it was in Reynolds, a limited basis for the government not to disclose a piece of evidence so it can’t be invoked to dismiss entire claims or cases. The court should also rule that trial judges faced with claims of privilege must examine the evidence to ensure they are convinced about the risk to national security from disclosure.
Indeed, as Justice Kagan noted during oral argument, the SSP is a coin flip in which the government wins either way. Whether the SSP prevents a plaintiff from making out a prima facie case or prevents the government (or its contractors on whose behalf it intervenes) from establishing an affirmative defense, the government often couples its invocation of the SSP with a motion to dismiss -- often prior to discovery.
But it seems pretty clear that the Court has no interest in taking up the SSP in earnest at this juncture, and that's unfortunate, because the posture of this case makes for an ideal opportunity for the Court to do so. In most SSP cases, Scalia's "go away" jurisprudence means a complete and utter victory for the government. But this time the government has some skin in the game and so this is a perfect occasion for the Court to explore the ramifications of an evidentiary privilege that the government uses both to prevent plaintiffs from making out their case and to excuse itself from its obligations to establish its defenses. It has done both in these cases, and that should make manifest the imbalances created by the current iteration of the SSP.
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