Friday, March 4, 2022
A Busy Couple of Days at SCOTUS: Intervention, the State Secrets Privilege, and the State Secrets Privilege
The Supreme Court handed down several opinions today and yesterday, including one case on intervention and two cases on the state secrets privilege.
In Cameron v. EMW Women’s Surgical Center, the Court reversed the Sixth Circuit’s denial of the Kentucky attorney general’s motion to intervene on appeal in a case challenging the constitutionality of a Kentucky abortion law. Justice Alito wrote the majority opinion, from which Justice Sotomayor dissented. Justices Kagan and Breyer did not join the majority opinion, but concurred in the judgment in an opinion authored by Justice Kagan.
In United States v. Zubaydah, a fractured Court found that the state secrets privilege blocked a Guantánamo Bay detainee’s discovery request under 28 U.S.C. § 1782 seeking to obtain information to use in Polish litigation regarding his treatment at a CIA detention cite; it therefore reversed the Ninth Circuit’s ruling that former CIA contractors could be required to confirm the location of the site. Here’s the headcount:
BREYER, J., delivered the opinion of the Court, except as to Parts II– B–2 and III. ROBERTS, C. J., joined that opinion in full, KAVANAUGH and BARRETT, JJ., joined as to all but Part II–B–2, KAGAN, J., joined as to all but Parts III and IV and the judgment of dismissal, and THOMAS and ALITO, JJ., joined Part IV. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which ALITO, J., joined. KAVANAUGH, J., filed an opinion concurring in part, in which BARRETT, J., joined. KAGAN, J., filed an opinion concurring in part and dissenting in part. GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.
And in FBI v. Fazaga, the Court unanimously held that § 1806(f) of the Foreign Intelligence Surveillance Act did not “eliminate, curtail, or modify” the state secrets privilege. Justice Alito authored the opinion of the Court, which remanded the case for lower courts to decide whether the state secrets privilege applied and whether dismissal of the plaintiffs’ claims was warranted.