The Judiciary


Addendum to Text Discussion on Role of FISA Court


Foreign Intelligence Surveillance Court

-         created in 1978

-         reviewed Justice Dept. requests for electronic surveillance if there is probable cause that a foreign power is involved (not necessarily a crime committed)

-         FISA authorized to minimize surveillance of US persons

o      Government and FISA had interpreted 1978 law as separating (a “wall”) between intelligence and criminal investigations

o      Intent was to prevent using probable cause of foreign involvement as pretext to ‘spy’ on US persons in cases when surveillance warrants would not otherwise be issued (no probable cause that a crime was being committed)


Expansion of Executive Surveillance Power after 9/11

-         USAPATRIOT Act lowers barrier to gaining warrant

o      Obtaining foreign intelligence must be a “significant purpose” not the only purpose

-         Other laws expanded scope of physical searches (“sneak and peek” warrants)

-         Increase in number of orders

o      86% more on average each year under Bush admin than Clinton admin

o      Clinton increased 36% more on average each year that G. H. Bush  admin.


FISA court rejected Justice Dept. request in May 2002

-         first time in over 10,000 decisions

-         in 75 cases during Clinton admin. the FBI had misled the court


FISA Court of Review overturned the FISA decision in Nov. 2002

-         first time FISA Court of Review ever met

-         following new government argument, argued that 1978 law never barred sharing of intelligence or criminal information and PATRIOT Act


What is the role of the Supreme Court?

-         Primarily decides whether decisions of lower federal courts and state supreme courts comply with Constitution

o      reviews cases that are appealed to it

o      cannot “reach down” to select cases


-         Judicial review – whether a decision of a lower court complies with the Constitution is a role assumed in Marbury v. Madison

-         specific facts of each case affect the decision

-         applies principles to cases (casuistry)

-         seeks balance between principles


Theories of Interpretation
“Conservative” Theories of Interpretation

o      Strict constructionism: strictly read the text

§       Does anyone do this?

o      original intent: what did the Framers intend?

§       Limited record available (Bork)

o      Originalism: what was a reasonable interpretation of the Constitution at the time of its writing? (Scalia)

§       Broader record available, but not intent of Framers


-         “Liberal” Theories of Interpretation

o      “Living Document”: Constitution should evolve to match societal needs

o      Pragmatism: what principles are reasonable under contemporary circumstances? (Posner)

o      Moral readings: Constitution upholds certain values and must be interpreted in light of those values, eg., liberty, equality (Breyer, Dworkin)


Scope of Court Action

-         judicial activism v. restraint

o      activists argue that court should take maximal position against Congress and executive consistent with Constitution

§       prioritize rights over political discretion

o      restraint school argues that courts should adopt minimal position Congress and executive consistent with Constitution

§       defer to political branches


Politics and the Judiciary

-         citizens, activists, interest groups and politicians seek to alter Constitution

o      influence who interprets Constitution

o      attempt to amend Constitution

§       amending is harder than interpreting


Excerpt from Hamdi Decision


“Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge… Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.”


Scalia in Hamdi v. Rumsfeld (03-6696) 542 U.S. 507 (2004)