This sounds hopeful:
“This is a case about the separation of powers,” U.S. Solicitor Gen. Theodore B. Olson began. He went on to describe a “constitutional immunity” that protects the White House from all legal demands for information, except when the president himself is under a criminal investigation.
Olson won a generally friendly reception from the justices. In one exchange, he asked them to imagine a law that would require the Supreme Court to disclose its inner workings.
It was a point well-made. The justices enforce a strict rule of secrecy for their internal debates, and Olson said the president deserved the same right to consult in private with outside advisors.
. . .
I think executive privilege means whenever the president feels that he is threatened, he can simply refuse to comply with a court order,” Scalia told Morrison in one exchange. “He has the power … to say, ‘No, this intrudes too much upon my powers. I will not do it.’ ” The justice added that the president should not even be forced to fight the issue before a judge.
. . .
Significantly, liberal-leaning Justice John Paul Stevens said he agreed with Olson’s argument that the 1972 law did not authorize lawsuits against the president and vice president. It “does not create a cause of action,” he said. “And the vice president is not an agency.”
Stevens also said he was unimpressed with claims that Cheney had talked with Lay or other corporate executives.
“What does that prove? Does that make [corporate officials] members of the advisory committee? They may have talked to a lot of people, but I don’t see what that proves.”
Justice Stephen G. Breyer, another of the court’s liberals, also said he did not believe the 1972 law authorized lawsuits whenever government officials met with outsiders. “Congress could not possibly have intended to have created that circumstance … putting government in a cocoon when it develops legislative policy,” he said.