Argument analysis: Government’s position in air marshal whistleblower case too “subtle” for Justices

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Scotus Blog: Argument analysis: Government’s position in air marshal whistleblower case too “subtle” for Justices

By Steve Vladeck on Nov 6, 2014 at 9:42 am

If Tuesday’s oral argument in Department of Homeland Security v. MacLean is any indication, the Supreme Court appears likely to side with a former federal air marshal and rule that his disclosure to the media of alarming lapses in post-September 11 aviation security was protected by the Whistleblower Protection Act of 1989 (WPA) – and so his termination for that disclosure was unlawful. And although one major clue that such a result may be forthcoming came in the Justices’ skepticism concerning the potentially illusory distinction on which the government’s argument rests, the real key may have been the effective rejoinder by counsel for the respondent, former acting Solicitor General Neal Katyal, that any harm that may thereby result to national security could be mitigated through executive orders.