No Frivolous Lawsuits

In its ruling on the A-12 case Monday, the Supreme Court rejected a concern that defense contractors could “goad” the government into invoking a state-secrets privilege in order to litigate their way out of an over-budget program. “Government contractors—especially cutting-edge defense contractors of the sort likely to operate in the state-secrets field—are repeat players,” wrote Justice Antonin Scalia for the unanimous court. “Even apart from the judicial sanctions available to punish bad conduct,” or frivolous lawsuits, “they have a strong incentive to behave rather than risk missing out on the next multi-billion-dollar defense contract.” Further, Scalia said the court had to resort to “its common-law authority to fashion contractual remedies in government contract disputes” in the A-12 case, and since the ruling is “common law” as opposed to statute, it is “subject to further refinement” in cases where the facts are “significantly different.”