This coming Term, through a ruling in Clapper v. Amnesty International USA, the Supreme Court could strip individuals of any practical ability to challenge and seek judicial limitation of government surveillance. Clapper was brought by lawyers, journalists, and human rights researchers who claim that a 2008 amendment to the Foreign Intelligence Surveillance Act infringed their First Amendment rights of freedom of speech and the press.  Under the new law, the government does not have to identify the targets of its surveillance program, but rather applies for a mass surveillance authorization. 

The Supreme Court will not be considering whether the government’s surveillance program violates First Amendment rights.  The only question before the Court is whether these citizens have the right to get into court to question the constitutionality of government surveillance of unspecified targets. 

Because the government refuses to disclose which individuals it has placed under surveillance, the lawyers, journalists, and researchers bringing suit cannot prove that they are being watched.  But since they represent and/or interview foreigners accused or suspected of terrorist activities, they assert that they have reason to 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.  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.

Constitutional Accountability Center has filed an amicus curiae brief demonstrating that the text and history of the Constitution’s judicial review provision, known as Article III, strongly support judicial oversight of the constitutionality of the government surveillance program challenged in Clapper.  The words of the Constitution authorize judicial review of all cases involving the Constitution and federal laws.  At the Constitutional Convention in Philadelphia in 1787, the Framers expressed their understanding that the text they drafted ensured judicial review of cases that challenge the constitutionality of federal laws.  For instance, Rufus King of Massachusetts asserted that judges “will no doubt stop the operation of such [laws] as shall appear repugnant to the constitution.”  In the Federalist Papers, which were written to convince Americans to vote to ratify the Constitution, Alexander Hamilton of New York explained that individual liberties “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.  Without this, all the reservations of particular rights or privileges would amount to nothing.”

The important role of the courts was also a factor leading to the adoption of the Bill of Rights, which includes the First Amendment’s protection of freedom of speech and of the press.  The Framers made it clear that the purpose of specifying individual rights in the Constitution was to ensure that courts would guard against laws violating these individual liberties.  When James Madison of Virginia proposed the Bill of Rights to Congress in 1789, he 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.”

And the courts in the formative early years of the country, in cases such as Marbury v. Madison and McCulloch v. Maryland, emphasized that “the very essence of judicial duty” is to resolve conflicts between federal laws and the Constitution.  Just last Term, in Zivotofsky v. Clinton, the Supreme Court cited Marbury in upholding court access to review the constitutionality of a law involving foreign relations.

The Clapper decision could tell us a great deal about whether the Roberts Court will live up to or shirk its critical role of preserving individual freedoms from encroachment from the political branches of government.  If the Supreme Court bars courts from evaluating claims such as these, there could be no practical way of determining whether intelligence agencies are respecting constitutional boundaries on the deployment of their formidable surveillance technologies.