The Judiciary
Addendum to Text Discussion on Role
of
Foreign
-
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
o
FISA court rejected
Justice Dept. request in May 2002
-
first
time in over 10,000 decisions
-
in 75 cases during
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