The parties’ briefing in Clapper v. Amnesty International USA appropriately focuses on whether the complex facts of this case meet the Supreme Court’s equally complex doctrinal criteria for according individuals “standing” to bring suit.  But two amicus curiae briefs – one filed by the Constitutional Accountability Center (CAC) supporting the plaintiffs seeking standing, and the other filed by the Washington Legal Foundation (WLF) on behalf of six former Attorneys General opposing standing – highlight competing visions of the constitutional role of the federal judiciary, the big issue at the heart of the case, lurking behind the surface technicalities.

Clapper was brought by journalists, lawyers, and human rights researchers who allege that the 2008 amendment to the Foreign Intelligence Surveillance Act infringed their First and Fourth Amendment rights. They represent and/or interview foreigners accused or suspected of terrorist activities, and they believe that the government is tapping their phone calls and other communications. They have spent money flying overseas to prevent possible ethical violations if their conversations with clients or news sources are wiretapped. 

Under this statute, the government does not have to identify the targets of its surveillance program, so individuals cannot prove that they were subjected to surveillance.  The government contends that the price of a plane ticket does not justify judicial review and has asked the Supreme Court to hold that the lawyers, journalists, and researchers do not have standing, a technical legal term requiring that a person have suffered actual injury before he or she can have a claim adjudicated in court. In seeking to avoid judicial review here, the government has made a classic Catch-22 argument.  Under their view of standing, to sue, plaintiffs must show they have actually been subject to surveillance.  But because the government will not disclose the targets of their program, it’s hard to see how anyone will ever be able to challenge the constitutionality of the surveillance program.  Yossarian would be impressed. 

WLF’s brief contends that Article III of the Constitution, which establishes judicial review, has a “gatekeeping role” and “protects against judicial overreach and unwarranted litigation” – i.e., Article III is primarily aimed at keeping people and valid constitutional claims out of court, rather than letting these claims be decided in court.. Yet, as CAC’s brief demonstrates, WLF’s interpretation of Article III has very little basis in the text or history of the Constitution. The words of Article III express no worry about the courts trampling on the executive and legislative branches.  To the contrary, Article III creates an extensive role for the judiciary in reviewing the constitutionality of federal laws passed by Congress and signed by the President. 

The text states: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution [and] the Laws of the United States…” (Emphasis added.)  Article III goes on to list certain categories of “Controversies” over which the federal judicial power shall extend.  In the 18th Century, the word “cases” was understood to encompass both civil and criminal matters, while “controversies” referred only to civil disputes.  Nothing in the text of Article III cautions against judicial overreach or unwarranted litigation.  Instead, the words of Article III impart judicial Power over all civil and criminal matters arising under the Constitution and federal laws. 

The Framers who wrote the Constitution and convinced the Nation’s citizens to ratify it expressed their fears – not of an unbounded judiciary – but of unchecked legislative and executive branches that, without oversight, would thwart the people’s constitutional rights.  James Madison, Alexander Hamilton, and Thomas Jefferson all identified the greatest threat to the newly emerging country as coming from the power of the national legislature to ignore constitutional protections of individual liberties.  For this problem, they had a simple solution: “courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”  The Federalist Papers 78 (Hamilton) (emphasis added).   

The Framers added the Bill of Rights to the Constitution – including the First and Fourth Amendments invoked in this case – specifically because they wanted the judiciary to play an especially vigilant role in reviewing federal laws to ensure the protection of individual rights.  When introducing the Bill of Rights in Congress in 1789, Madison stated that if these rights “are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.”

In the Nation’s early years, in cases such as Marbury v. Madison and McCulloch v. Maryland, the Supreme Court emphasized that “the very essence of judicial duty” is to resolve conflicts between federal laws and the Constitution.  The Court’s recognition of its constitutional role as the arbiter of the constitutionality of federal law has continued to the present.  Interestingly, the only pre-20th Century source cited by WLF in support of their interpretation of Article III is a rather ambiguous statement in a speech given by Chief Justice John Marshall.  We here at CAC think Justice Marshall’s opinions for a unanimous Supreme Court in cases such as Marbury and McCulloch speak for themselves.

The Clapper case demonstrates why it is essential that the courts retain the “impenetrable bulwark” role contemplated by the Framers.  As two former National Security Agency (NSA) employees explained, based on their long experience, “The NSA has been willing time and again to throw the Constitution overboard and snoop on innocent Americans who are not suspected of any wrongdoing,” and neither it nor any executive agency “can be trusted with this power,” without “giving the courts the opportunity to determine whether the executive and legislative branches have gone too far.” 

It is certainly the case that some recent opinions authored by the Supreme Court’s conservative majority support using standing doctrine as a way of imposing sometimes insurmountable obstacles to judicial review.  The history recited in CAC’s brief – and missing from WLF’s brief – documents how little basis there is for this interpretation of Article III in the Constitution’s text and history.  As Jefferson explained, the Constitution and Bill of Rights put a “legal check” in the “hands of the judiciary.”  If the Supreme Court emasculates the constitutional balance of power to insulate from scrutiny the actions of the executive and legislative branches in Clapper, our individual liberties may become, as feared by Madison, mere “mark[s] on paper.”