CAMBRIDGE, MASSACHUSETTS – 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 U.S. Constitution, but in the early Supreme Court’s understanding of what made a court truly judicial. Article III of the U.S. 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.
Courts in some states and other countries issue advance advisory constitutional opinions all the time, and there’s nothing inherently undemocratic about the practice. The federal courts don’t do this because the justices have traditionally believed that their job depends on judging between competing arguments about what the law demands. Requiring concrete cases rather than hypotheticals is part of this; so, too, is the notion that only parties with a genuine stake in the outcome can press their claims with full zealousness.
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 Barack 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 conservatives justices, including Roberts, insisting that a group of Congress members 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.
Reconciling the holdings of the two cases is no easy business, and it will be the work of legal commentators and lower courts for years ahead. An observer could be forgiven for suspecting that standing law is a game played by the justices to avoid the cases they don’t want and to take on the ones they do.
Yet the secret surveillance courts show just how much standing really 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. The government is often the only party that appears before the court. When a telecommunications company happens to be there, too, it is not truly adverse to the government, because a service provider like Verizon Communications Inc. has little independent stake in its customers’ secrets. (In fact, an e-mail provider like Google Inc. uses the customers’ private communications itself, with their consent, to sell advertising.) The individuals whose privacy is violated never have a voice in the process. Unlike the issuance of a warrant in an ordinary criminal case, the surveilled party never gets a day in court.
Deprived of the viewpoint of the real parties in interest, the judges unsurprisingly approve the government’s requests essentially all of the time. And here comes the paradox: Judges for the FISA courts are appointed by the chief justice, someone who has demonstrated deep concern for the issue of standing. It doesn’t help to recognize that 10 of the special court’s 11 judges, all picked by Roberts, were Republican nominees. (In the absence of adversarial justice, it’s unlikely that Democratic nominees to the surveillance court would have acted much differently.)
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.
Sadly, 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.
Noah Feldman, a law professor at Harvard University and the author of “Cool War: The Future of Global Competition,” is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman. E-mail: firstname.lastname@example.org.