Robert J. MacLean is shown taking the oath at his federal law enforcement training graduation.

(Associated Press) WASHINGTON — The Supreme Court ruled Wednesday that a former air marshal who was fired after leaking plans to the media about security cutbacks can seek whistleblower protection.

By a 7-2 vote, the justices said Robert MacLean did not violate federal law when he revealed that the Transportation Security Administration planned to save money by cutting back on overnight trips for undercover air marshals.

MacLean leaked the information in 2003 to an MSNBC reporter after supervisors ignored his safety concerns. [He believed the planned cuts endangered the public.] His disclosure triggered outrage in Congress over the cuts, and the Department of Homeland Security quickly reversed the policy, calling it a mistake. But the TSA fired McLean three years later after it discovered he was the leaker.

A federal appeals court sided with MacLean, but the Obama administration appealed. The government argued that whistleblower laws contain a major exception — they do not protect employees who reveal information that is “prohibited by law” or by an executive order. Government lawyers pointed to TSA regulations that prohibit employees from disclosing “sensitive security information,” including any information relating to air marshal deployments [assignments; where they are working].

Chief Justice John Roberts said in his opinion for the court that nothing in federal law prohibits MacLean from doing what he did. The government has raised legitimate security concerns, Roberts said, but they must be addressed by the president through an executive order or Congress by changing the law. “Although Congress and the president each has the power to address the government’s concerns, neither has done so. It is not our role to do so for them,” he wrote.

Justices Sonia Sotomayor and Anthony Kennedy dissented.

MacLean also had argued that the information about cutting overnight trips wasn’t really sensitive because it had been sent as a text to his cell phone without using more secure methods.

The government warned that allowing MacLean to gain whistleblower status would only encourage other federal employees to divulge secret information, posing a future threat to public safety. Roberts repeated what several justices said during arguments in November — that if the safety issue were grave enough, the president could simply sign an executive order prohibiting federal workers from revealing such sensitive data.

The case is Department of Homeland Security v. MacLean, 13-894. [The ruling will not immediately lead to MacLean’s reinstatement. He must now go back before the MSPB (Merit Systems Protection Board) and argue his case again.]


1. What is the purpose of each:

  1. leaker
  2. whistleblower
  3. federal air marshal

2. a) What did U.S. federal air marshal Robert MacLean do that caused the TSA to fire him?
b) Why did he do it?

3. For what reason did the TSA say Mr. MacLean was fired?

4. When Mr. MacLean appealed his firing, a federal appeals agreed with him. Why did the Obama administration appeal the verdict?

5. Why did the U.S. Supreme Court rule in Mr. Maclean’s favor?

6. How did Chief Justice John Roberts address the government’s concern that excusing MacLean would only encourage other federal employees to divulge secret information (which they say will pose a future threat to public safety)?

7. When the cuts were made public and Congress questioned them, the Department of Homeland Security quickly reversed the policy, calling it a mistake. Do you think the TSA still should have fired Mr. MacLean? Explain your answer.



  • A case selected for argument usually involves interpretations of the U. S. Constitution or federal law. At least four Justices have selected the case as being of such importance that the Supreme Court must resolve the legal issues.
  • An attorney for each side of a case will have an opportunity to make a presentation to the Court and answer questions posed by the Justices. Prior to the argument each side has submitted a legal brief – a written legal argument outlining each party’s points of law. The Justices have read these briefs prior to argument and are thoroughly familiar with the case, its facts, and the legal positions that each party is advocating.
  • Beginning the first Monday in October, the Court generally hears two one-hour arguments a day, at 10 a.m. and 11 a.m., with occasional afternoon sessions scheduled as necessary. Arguments are held on Mondays, Tuesdays, and Wednesdays in two-week intervals through late April (with longer breaks during December and February). The argument calendars are posted on the Court’s Website under the “Oral Arguments” link. In the recesses between argument sessions, the Justices are busy writing opinions, deciding which cases to hear in the future, and reading the briefs for the next argument session. They grant review in approximately 100 of the more than 10,000 petitions filed with the Court each term. No one knows exactly when a decision will be handed down by the Court in an argued case, nor is there a set time period in which the Justices must reach a decision. However, all cases argued during a term of Court are decided before the summer recess begins, usually by the end of June.
  • During an argument week, the Justices meet in a private conference, closed even to staff, to discuss the cases and to take a preliminary vote on each case. If the Chief Justice is in the majority on a case decision, he decides who will write the opinion. He may decide to write it himself or he may assign that duty to any other Justice in the majority. If the Chief Justice is in the minority, the Justice in the majority who has the most seniority assumes the assignment duty.

On the Supreme Court from

  • Approximately 7,500 cases are sent to the Supreme Court each year. Out of these, only 80 to 100 are actually heard by the Supreme Court. When a case comes to the Supreme Court, several things happen. First, the Justices get together to decide if a case is worthy of being brought before the Court. In other words, does the case really involve Constitutional or federal law? Secondly, a Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. Therefore, the Court tries to use this enormous power only when a case presents a pressing constitutional issue. …
  • The Supreme Court convenes, or meets, the first Monday in October. It stays in session usually until late June of the next year. When they are not hearing cases, the Justices do legal research and write opinions. On Fridays, they meet in private (in “conference”) to discuss cases they’ve heard and to vote on them. …
  • Most cases do not start in the Supreme Court. Usually cases are first brought in front of lower (state or federal) courts. Each disputing party is made up of a petitioner and a respondent.
  • Once the lower court makes a decisions, if the losing party does not think that justice was served, s/he may appeal the case, or bring it to a higher court. In the state court system, these higher courts are called appellate courts. In the federal court system, the lower courts are called United States District Courts and the higher courts are called United States Courts of Appeals.
  • If the higher court’s ruling disagrees with the lower court’s ruling, the original decision is overturned. If the higher court’s ruling agrees with the lower court’s decision, then the losing party may ask that the case be taken to the Supreme Court. But … only cases involving federal or Constitutional law are brought to the highest court in the land.
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