Original Face

More grist for the mill

One incident is an accident, two is a coincidence but three is a pattern.  It is now at coincident status, but the decision of the 6th Circuit today in ACLU v. NSA is the second case in the same number of weeks that has been decided on procedural grounds using the lack of standing as the dispositive issue. 

You may recall that the Supreme Court recently ruled against a public interest law firm's suit in an environmental case because the plaintiffs in the action could not demonstrate that they were in fact harmed.  In discussing that case, I noted that it was a step toward limiting so-called public interest lawsuits by demanding that cases that come before courts are not merely disguised public policy debates.  I expressed hope that the case would become the harbinger of further constraints on judicial meddling in the affairs of the political branches.

In today's decision, the Circuit Court (the level just below the Supreme Court) used the same reasoning in a case involving eavesdropping authorized by the Patriot Act.   The appellate tribunal rejected the ACLU's case, not on substantive grounds (the issue of the "constitutionality" of the Patriot Act was not the subject of the Circuit Court's opinion), but that the plaintiffs who brought the suit were not under surveillance themselves and thus had no "cause of action," that is, they had not been harmed by the Patriot Act.

The claim that all citizens are harmed by such laws advanced by the ACLU was rejected by the Circuit panel and a need for clear standards on "standing to bring a suit" was asserted.  The Circuit Court held that issues that involve societal claims are not the province of the court system and are in the power and jurisdiction of the legislative and executive branches.

Now, if there one more case, we can have confidence that a pattern is indeed emerging.  As I said in a previous posting, if that were to happen, it would be of singular importance for cause of judicial restraint.  The Roberts Revolution will have begun.

Stand up and be counted

What a difference a year can make.  Even in the law.  The rulings from the Supreme Court today were a victory for freedom and the democratic process.  While I could be referring to the substantive outcome of some of the cases such as FEC v. Wisconsin RTL which struck down the pernicious gag on political speech that was attempted by the McCain-Feingold act, I am actually referencing technical decision in National Association of Home Builders v. Defenders of Wildlife.

The decision of the Court in this case was not on the merits of the issue at hand but rather on a complicated issue of procedure that, in many ways, is much more important than whether this particular regulation allows or doesn't allow home building on a piece of property.  The Court has begun to reverse the trend of the past 40 years.  It has begun to demand that cases brought in a court must be argued by parties that have a real and substantial stake in the outcome of THAT particular lawsuit.

The power of the judiciary is limited to a large extent by the requirement that it only gets involved in matters of policy as demanded by real claimants asserting real claims.  In the 1960s this shibboleth began to become eroded as the concept of the "public interest" lawsuit was developed and accepted by courts that wanted to become policy makers.

By allowing anyone to bring suit--any lobbyist, for example, interest groups could bypass recalcitrant executive or legislative policy makers to get an unelected judge to make political judgments for them.  If this seems far fetched, read again the opinions of Souter or Ginsburg in the cases decided today.  Their arguments were for or against a particular policy outcome.  In this particular case they argument an environmentalist cause, regardless that this case was not on the merits of the claim.

By requiring real plaintiffs in the cases that come before the judiciary, the Court has begun to recognize that it, and other judges, are not "oracles" who have a divinely given right to discern those disputes that, in a representative democracy, should be settled by the political branches.  The Court's majority understand that real plaintiffs, as opposed to interests group attorneys, will not be interested in grand settlements that make law for a society but rather wish to have their case resolved in a manner that best suits their particular needs. 

Of course, today's decision did not in one fell swoop reverse 40 years of societal engineering by courts.  There are many more battles to be won for that to occur.  Yet, with this ruling it seems that a majority of the justices maybe willing to take the next logical step.  They may require that settlements imposed by courts need to be crafted in a manner which limits its applicability to the smallest possible impact.

If that were to happen, then the courts will finally have accepted self restraint.