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  • Oct 19th, 2013 @ 11:16am

    Re: Sorry, no cigar

    I don't think you're quite understanding some of the nuance of the issue here.

    If you're arguing that the Supreme Court won't reopen the specific "standing" decision they made regarding the FAA -- you're almost definitely right on that.

    But if someone with standing comes to the court, then the Supreme Court will address the merits. There are multiple cases currently pending where parties clearly have standing. Most notably, the ACLU-as-Verizon-Customer case file within days of Snowden's first leak.

    Merits issues vs. standing issues are entirely different questions. The Supreme Court has sidestepped issues on standing, only to be forced to address the merits in a new case a few years later, more times than I can count. (It's been a particularly popular tactic in First Amendment cases). The Supreme Court (or at least, a variety of appellate courts) are going to be forced to address the 4th Amendment merits on this one.



    And to those who think this won't reach the court, citing the statistics of certiorari grants, those are pretty misleading in this case. The cases the Court is most likely to take are (a) cases of major national political importance, and (b) cases where a Circuit split develops. This is easily a "case of major national importance." Remember: The DOMA/Prop 8 cases sailed to the top of the court's docket last year, even though they were "young" disputes under traditional court-watching criteria.

  • Oct 18th, 2013 @ 1:11pm

    Re: Re: Thank God for separation of powers

    But no ARTICLE III judge has yet to address the merits, just the secret FISA court ones. The Article III judges (i.e. DC Circuit Court of Appeals, Supreme Court) are going to be FURIOUS.

    I'll agree that a lot of Congressmen are every bit as condemned in this as the executive branch itself. But as Snowden's leaks have brought these stories to light, more and more Congressmen are agitating for change, as covered extensively by Techdirt. So there's some powerful Congress vs. Executive Branch dynamics at play here, too.

  • Oct 18th, 2013 @ 12:22pm

    Thank God for separation of powers

    One thing I learned in law school is that the only thing stronger than the political party divide in America is the constitutional separation of powers divide. So whatever you may think about activist, political judiciaries, I will assure you of one thing: JUDGES DO NOT LIKE TO BE LIED TO. Especially not by their "co-equal" branches of government.

    Even though the original case was 5-4 on standing, I'll officially wager that the first case to reach the Supreme Court on the 4th Amendment merits of NSA Surveillance will be 9-0 against the intelligence community.

    I'll further wager that the majority opinion will be filled with glorious language like "A constitutional democracy cannot function if the government itself willfully lies to the judiciary in order to prolong their unconstitutional abuses; such behavior is but one step removed from despotism."