Noah Feldman: No justice when those spied on have no voice

07/11/2013 6:49 PM

07/11/2013 6:49 PM

If you’re not a U.S. Supreme Court junkie, you wouldn’t know that the single topic that most exercised the justices in the decisions issued in late June was the arcane law of standing. This is the requirement that every case before the court pose two parties against each other, arguing the opposite sides of the case at hand.

Adversarial standing isn’t generally the stuff of headlines. But gradual revelations of a large body of secret law made by the Foreign Intelligence Surveillance Court demonstrate what happens when it falls by the wayside: The courts lose the appearance of impartiality – and sometimes the reality of it, too. In our system, courts that only listen to the government shouldn’t really be considered courts at all.

The origins of standing don’t lie in the text of the Constitution, but in the early Supreme Court’s understanding of what made a court truly judicial. Article III of the Constitution confers the judicial power in “cases or controversies” – and the court interpreted these words to mean it lacked power when there was no real fight between adverse parties. Famously, when George Washington asked the court to help him decide on the constitutionality of a law Congress had presented to him for his signature, the court refused.

In the just-ended Supreme Court term, standing problems arose when California refused to defend the constitutionality of Proposition 8, its anti-gay marriage initiative, and the Obama administration refused to defend the Defense of Marriage Act. Five justices, led by Chief Justice John Roberts along with Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, held that the people who first introduced the California ballot initiative were not proper parties to argue its merits before the court, because they didn’t work for the state and had no interest in the law greater than any other citizens. This was a cautious, traditional invocation of the demand that the parties be truly against each other.

In the DOMA case, the lineup was different, with the four conservative justices, including Roberts, insisting that members of Congress weren’t appropriate parties to defend a law they had voted for, and the four liberals, plus Anthony Kennedy, deciding that the legislators were adequate representatives of the pro-DOMA viewpoint.

The secret surveillance courts show just how much standing matters. Judges who hear only the state’s side of the story, not the public’s, aren’t truly deciding disputes between adverse parties. And in the great majority of these cases, that is exactly what happens.

Deprived of the viewpoint of the real parties in interest, the judges unsurprisingly approve the government’s requests essentially all of the time.

Secret laws are undemocratic, and public laws secretly interpreted aren’t much better, because the public can’t know what the laws mean in practice. But it may turn out that the worst part of the secret surveillance courts is what they do to our tradition of the court fight as a battle among equals.

The same justices who care so much about standing in the cases before them ought to take an interest in what is happening in the national security courts they oversee. Unfortunately, when the court was faced with a Foreign Intelligence Surveillance Act case earlier this year, it refused to decide the issue. The reason? The parties before the court lacked standing.

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