Sotomayor Issues First Ruling of Term in Quasi-’State Secrets’ Case

Created: December 09, 2009 09:01 | Last updated: July 31, 2020 00:00

Justice Sonia Sotomayor, the high court’s newest addition, was given the honor of issuing the first ruling of the Supreme Court’s term yesterday. On its face, the case — about the right to appeal a judge’s order to disclose confidential attorney-client communications — doesn’t look very controversial, and was decided unanimously. But it was closely watched for its potential implications for other, highly controversial cases in which the government is arguing the right to protect what it calls “state secrets” from being produced in federal court.

Yesterday’s ruling involved an employment case. Norman Carpenter had sued Mohawk Industries after he was fired, claiming he was only fired because he’d complained that the company was hiring undocumented workers. Unbeknownst to Carpenter, the company was already being sued for allegedly trying to drive down wages by doing just that. Carpenter claimed one of Mohawk’s lawyers pressured him to recant his claims, and that he was fired because he refused.

The conflict heated up when Carpenter tried to get documents revealing what was said in that conversation with the company’s lawyer. The company refused to turn them over, citing attorney-client privilege. But the court said the company had waived that privilege already in various ways, and ordered them turned over. The company appealed.

In the appeal, the U.S. government filed a friend-of-the-court brief supporting Carpenter, but went out of its way to argue that while the employer should not have the right to an immediate appeal, if the government were involved and the disclosure involved state secrets, then the government should have that right. According to the Justice Department:

Although denials of the attorney-client privilege do not meet the Court’s stringent standards for collateral order review, denials of certain governmental privileges—in light of their constitutional grounding, rare invocation, and unique importance to governmental functions—should qualify for immediate appealability. In particular, the ordered disclosure of a Presidential communication or state secret would more directly and irremediably harm the purpose of the corresponding privilege (i.e., preserving confidentiality of top-level Executive Branch communications or protecting national security) than would disclosure of attorney-client privileged information.

The Justice Department seems to have been trying to get the court to sneak a statement into its opinion about the superior importance of executive branch communications or secrets, as opposed to an ordinary run-of-the-mill company’s privilege.

Sotomayor, in her first opinion of the new term, declined to do that.