After the contractors are called out for seeking a ruling that seems to reward their greed, Acting Solicitor General Neal Katyal gets called out for asking for a ruling that sounds like it will always make the government win. Chief Justice John Roberts has a solution that sounds a lot like Scalia's: "You say they're at fault, they say you're at fault. Under the state-secrets doctrine we can't resolve that question. Why don't we call the whole thing off?"
Justice Scalia rapidly dubs this the "go away rule," and he seems to exult in saying it to the parties over and over again throughout the morning: "Go" and "leave" and "get outta here," he grins, time and again, until he sounds just a bit like a Tammy Wynette song.
Because of the language in the 1953 Reynolds decision, this whole case depends on which party was the "moving party" in this civil suit. Roberts asks Katyal if the government could ever be the moving party in the court of claims—that would be the court you go to get money from the government. Replies Katyal, "Sure, I imagine we could be on a counterclaim." Roberts replies that "on a counterclaim, somebody else is still the moving party." Katyal agrees. Concludes Roberts: "So this is a pretty convenient rule for you?"
Justice Elena Kagan asks about the government's win-win posture in a different way, "Suppose state secrets had prevented you from being able to prove your claim; that you were unable to make that showing because of state secrets. What would happen then?" Katyal explains that in that case, the suit would have been dismissed, just as it was when the contractors couldn't prove their claim. Replies Kagan: "That really does sound like a tails you win, heads you win."
Katyal sticks to his guns and says he sees "zero precedent" for the kind of split-the-baby relief Scalia and Roberts are advocating, whereby each party pockets some of the disputed billions and the court washes its hands of the whole mess and blames it on state secrets. The court doesn't seem poised to clarify anything at all about the state secrets privilege, at least not today. It seems inclined, instead, to craft an equally perplexing new corollary doctrine of "get out, leave, go away."