A Wall Street Journal editorial used a little noticed Supreme Court decision on wiretapping to attack the liberal justices for engaging in an imagined "liberal legal war against U.S. antiterror policy," while ignoring how the decision could further shut out plaintiffs from litigating against more powerful defendants.
The case, Clapper v. Amnesty International, involved a constitutional challenge to the U.S. Government's secret global wiretapping under the Foreign Intelligence Surveillance Act and the Protect America Act. This legislation, broadened as part of the past two administration's counterterrorism efforts, now enables warrantless surveillance of American citizens participating in international communications with a person of interest. However, the challenge never made it to the constitutional merits of these laws.
Instead, the courts focused on whether the collection of lawyers and journalists who worked on topics of interest to the government's counterterrorism efforts were sufficiently affected - whether they had legal "standing" - to challenge the law. From the WSJ explanation of the ensuing ideologically split opinion in which the five conservative Justices prevailed:
The liberal legal war against U.S. antiterror policy continues, most of the time out of public sight. But on Tuesday Americans were able to see how small their margin of safety really is as a narrow majority of five Supreme Court Justices rejected an especially outrageous attempt to challenge wiretapping of foreign terrorists.
In Clapper v. Amnesty International, anti-antiterror journalists and activists claimed they had legal standing to sue the U.S. government to stop the surveillance of foreign terrorists. Though they aren't the intended targets of such wiretaps, and explicitly cannot be under the language of the law, the activists claim they are nonetheless harmed because they might communicate with foreigners who are targets and so be overheard.
This isn't even a close call, as Justice Samuel Alito explained for the majority. The Supreme Court's traditional standard is that a plaintiff must show evidence of actual harm or at least that the "threatened injury must be certainly impending to constitute injury in fact." Yet the plaintiffs in this case can't even show evidence that their communications have been overheard, much less that they were harmed.
Despite the editorial's emphasis on the liberal "lockstep Justices" who failed to enable the "liberal legal war," the editorial concedes that the conservative Justices ended up supporting the position of the current and past administrations. Furthermore, for good or for bad, current counterterrorism policies are overwhelmingly supported on a bipartisan basis. Nevertheless, the more significant error is the editorial's misrepresentation that the majority's decision adhered to the "traditional standard" for requiring plaintiffs "show evidence of actual harm."
In fact, the conservative Justices "reach[ed] back to a 1923 decision in a natural gas storage case to find a restrictive rule against allowing federal lawsuits to go forward[,]" one that the dissent argued appears to have never been used before as necessary for standing. Rather, in recognition of the fact that lawsuits can be filed about future harms, the traditional standard for standing has been more permissive than the new "certainly impending" test that the conservative majority held was now required. As detailed by Justice Stephen Breyer in dissent:
[W]e need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened plaintiffs as "speculative."
The majority more plausibly says that the plaintiffs have failed to show that the threatened harm is "certainly impending." But, as the majority appears to concede, certainty is not, and never has been, the touchstone of standing. The future is inherently uncertain. Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here.
Clapper is significant because it is another technical case handed down by the conservative wing of the Supreme Court where the details conceal the wide-ranging implications. Legal experts such as Rochelle Bobroff of the Constitutional Accountability Center are already pointing out that the dissent "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."
Indeed, the Roberts Court has proven successful at restricting access to justice for plaintiffs litigating against monied interests. This closing of the courthouse doors to victims of institutional malfeasance is the story of Clapper that the WSJ editorial board completely ignores. As reported by Dahlia Lithwick in The Nation:
Another measure of the Supreme Court's favoritism for corporations over ordinary people lies in the ways it has eroded access to the courts for ordinary litigants in recent years. It's worth recalling that the courts exist as the one branch of government intended to be immune from the kind of concentrated and wealthy influence [representative of corporate interests]. The judicial branch was conceived as the one above-the-fray realm where ordinary people--those without lobbyists, Super PACS or position papers--might still find a fair hearing when they were wronged. But one of the central projects of the conservative legal movement in recent decades has been to recalibrate that balance, allowing big business to throw up roadblocks to the courthouse doors and make the courts less and less accessible to the people it has harmed.
[In the] 2010 book, The Conservative Assault on the Constitution, [Dean of Law Erwin] Chemerinsky summarizes the massive set of barriers established by the conservative justices on the current Court: "These include restrictions on who can bring a lawsuit, much greater requirements for factual details in complaints to get into court, the tremendous expansion of sovereign immunity that prevents suits against state governments, a strong preference for arbitration over adjudication before juries, and strict limits on the size of punitive-damage awards." These technical-sounding doctrinal shifts, taken together, have worked to make it ever more difficult for injured Americans to find their way into a courtroom. As Chemerinsky puts it, "Each and every one of them undermines accountability by strongly favoring defendants, governments, government officials and businesses." Courts--once the refuge of the little guy--have now become bastions to shelter the powerful instead.