When the Transportation Safety Administration decided to cut back on air marshals for overnight flights one of those marshals leaked the information to MSNBC. Congress was furious when the news broke and the TSA promptly withdrew the cutbacks.
Former air marshal Robert MacLean was fired when the agency learned that he was the source of the leak. MacLean then appealed under the Whistleblower Protection Act, but was turned down because the act does not protect disclosures “specifically prohibited by law”. But the fact is that MacLean never broke the law, only TSA rules, and so he won in the lower court.
The Supreme Court agreed to the government’s petition seeking a reversal, but today at argument that seemed unlikely.
Several justices pointed out that the act refers only to laws, not agency regulations. “So it is prohibited by regulations, let’s not play games,” Justice Antonin Scalia told deputy solicitor general Ian Gershengorn.
The lawyer for the former air marshal, Neal Katyal, had an easier time. “The facts,” Justice Sonia Sotomayor told him, “are very much in your favor here.”