In its 5-4 decision today in Clapper v. Amnesty International, the Supreme Court’s conservative majority yet again denied plaintiffs access to the federal courts based on a procedural bar. (See Simon Lazarus’ article for a discussion of the Roberts Court’s pattern of hostility to court access for private plaintiffs.)    Writing for the majority, Justice Samuel Alito refused to hear the claims of a group of lawyers, journalists, and human rights researchers who had asked the court to rule on the constitutionality of a counterterrorism surveillance program that authorizes eavesdropping on international communications involving Americans.  Despite the fact that the plaintiffs demonstrated that they represented or otherwise had reason to communicate with likely targets of surveillance—including Guantanamo detainees accused of acts of terror and their families—Justice Alito found that they had failed to adequately show that they had suffered actual injury and thus did not have standing to have their constitutional claims adjudicated by the courts.  Of course, given the secrecy surrounding the intelligence gathering program, it would be extremely difficult for the plaintiffs to show that the government had actually listened in on their conversations.    As noted by Justice Breyer writing in dissent on behalf of the Court’s four more liberal Justices, courts had previously required a reasonable probability that the feared harm will occur rather than an absolute certainty.   

The majority’s restrictive concept of standing is obviously flawed as a matter of basic common sense—after all, surely a homeowner could come into court to seek to prevent a nuclear plant from being built next door if there were a reasonable probability of radiation contamination, rather than being forced to wait until her family had radiation poisoning—but more important, neither the Constitution nor the Court’s precedents require litigants to show to a 100% certainty that a potential injury will occur in order to get through the courthouse doors.   As CAC explained in its brief filed in support of the Clapper plaintiffs, our Constitution’s Framers understood that judicial review was crucial to the protection of the rights and liberties of the people.  James Madison, for example, was worried that the rights of the people, even those “strongly marked on paper,” would be disregarded when inconvenient to the will of a majority of the “public.”  He successfully urged Congress to add a Bill of Rights to the Constitution so that the judicial branch would enforce the rights of the people.  He instructed our very first Congress that incorporating a Bill of Rights into the Constitution would ensure that “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; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”  Similarly, in the Federalist Papers, Alexander Hamilton exhorted the citizens that the Constitution should be ratified because “courts of Justice” would “declare all acts contrary to the manifest tenor of the Constitution void,” and without judicial review, all rights “would amount to nothing.”

Justice Alito’s opinion turns the Founders’ design on its head.  Instead of recognizing that the courts have a particular duty to protect the rights of unpopular minorities against governmental encroachment, the majority stated that when the legislative and executive branches are alleged to violate the Bill of Rights, especially with regard to the gathering of intelligence and foreign affairs, then the courts should be “especially rigorous” in applying the standing doctrine.  The upshot in this case is that the courts will probably never rule on the constitutionality of the challenged electronic spying program.

The big question after Clapper is whether the Court’s unfortunate analysis will be limited to the facts of the case—reflecting the conservatives’ concern about drawing the courts into oversight of a sensitive national security program—or whether it will be used to bar the courthouse doors to litigants across the board.  The dissent by Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, raised the possibility that the majority’s newfound requirement of a near-certainty of actual injury could prevent litigants from pursuing environmental, consumer protection, and benefits claims, among others.

While Justice Breyer’s dissent rightly points out the failings in the majority’s analysis, it missed an opportunity to champion the constitutional imperative for judicial review of alleged violations of the Bill of Rights.  Instead of simply arguing about the facts and the meaning of prior cases, the liberal Justices could have noted the intent of the Framers, emphasizing the progressive nature of our Constitution.  Conservatives frequently assert that they are the champions of the Framers’ original intent.  (Compare Jennifer Rubin’s article with Simon Lazarus in The New Republic.) But in Clapper, the conservative Justices ignored the Founders’ establishment of judicial protection of the rights of the people.  The majority insulated the legislative and executive branches from judicial inquiry, precisely the opposite of the Framers’ plan.