This Day in Liberal Judicial Activism—August 17
2006—In what one expert commentator aptly labels a “transparently political screed,” Michigan federal district judge (and Carter appointee) Anna Diggs Taylor rules that the National Security Agency’s Terrorist Surveillance Program is unconstitutional. Displaying its usual regard for the truth, the next day the New York Times editorial page praises Taylor’s “careful, thoroughly grounded opinion.” Alas for the paper’s poor editorialists, the following day the Times runs a front-page article—“Experts Fault Reasoning in Surveillance Decision”—that reports that “[e]ven legal experts who agreed with [Taylor’s] conclusion” say that her opinion “overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.” (How’s that for “careful” and “thoroughly grounded”?) Even Harvard law professor Laurence Tribe, in the course of self-indulgently criticizing Taylor’s critics for self-indulgent criticism, complains that her opinion “seems almost to have been written more to poke a finger in the President’s eye than to please the legal commentariat or even, alas, to impress an appellate panel.” But Tribe concludes that “her bottom line is very likely to survive appellate review.”
In July 2007, the Sixth Circuit overturns Taylor’s ruling, as a divided panel rejects her threshold determination that the plaintiffs had standing to pursue their claims.