Bench Memos

NRO’s home for judicial news and analysis.

Reportorial Judgment


Yesterday the Supreme Court issued an “orders list” tidying up its docket–a few summary dispositions, motions granted or denied, and most importantly for the justices’ future workload, granting certiorari (appellate review) in a handful of cases while denying “cert” in a far greater number.

Out of the scores of cases mentioned in the orders list, surely the most significant was the Court’s denial of certiorari in American Civil Liberties Union v. National Security Agency, leaving in place a Sixth Circuit ruling that the ACLU and its co-plaintiffs have no standing to challenge the NSA’s terrorist surveillance program.  This is an important victory for the Bush administration and for the nation’s war effort, as both Kathryn Jean Lopez and Andy McCarthy noted on The Corner yesterday.

So how did the story play in two of the nation’s most important newspapers this morning?  Robert Barnes of the Washington Post gave the cert denial in the ACLU case its proper prominence, as almost the only thing worth mentioning that the Court did yesterday.  “ACLU’s Suit Against Wiretapping Is Declined,” reads the headline.  At the end of his article, Barnes mentioned another case the Court turned aside, then told his readers that the justices accepted four new cases, one of which he summarized in a final sentence.

Over in the New York Times, the acclaimed doyenne of Supreme Court reporters, Linda Greenhouse, led with one of the four cases accepted (though not the one Barnes mentioned).  “Justices Will Hear Case on Evidence Suppression,” reads the headline, referring to a case Greenhouse played up big, about whether a trivial clerical error that vitiated the grounds for an arrest should result in the suppression of incriminating evidence discovered in the possession of the person arrested.  Whichever way this case comes out, its significance is so close to zero that the ruling will wind up uttely forgotten, except perhaps on the final exam of some crashingly dull course on criminal procedure somewhere.  But Greenhouse goes on about the case as though it were the Next Big Thing in the history of the Fourth Amendment exclusionary rule.

And where is the ACLU v. NSA case?  In the afterthought category, among the “other developments on Tuesday” at the Supreme Court.  Greenhouse’s reporting on the case, in four short paragraphs, is competent enough.  But it’s simply bizarre that she treats the utterly unimportant cert grant on the exclusionary rule case as the leading event at the Court yesterday.

It’s enough to make you wonder whether her husband, Eugene Fidell, assisted the ACLU with its petition behind the scenes.  Ed?  Ed Whelan?  Call your office.

Oh, and the name of the case Greenhouse plays up is Herring v. United States.  I think the herring is red.


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