This Day in Liberal Judicial Activism—March 21

2011—In Amnesty International v. Clapper, a Second Circuit panel rules that attorneys, journalists, and labor, legal, media, and human rights organizations have standing to bring an action facially challenging the constitutionality of a provision of federal law that creates new procedures for authorizing foreign electronic surveillance. The plaintiffs have standing, the panel rules, because the new procedures “cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs.”

As surveillance expert Orin Kerr puts it, “If this new decision is right, then challenging secret surveillance statutes would seem to be pretty easy—in stark contrast with the previous understanding that it was extremely difficult.”

In September 2011, the Second Circuit will deny rehearing en banc on an evenly divided 6-6 vote. The dissenters condemn the panel’s rule as contrary to Supreme Court precedent, and Chief Judge Dennis Jacobs adds:

“As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.”

Two years later, the Supreme Court, by a 5-to-4 vote, will reverse the panel ruling on the ground that plaintiffs’ theory of future injury “relies on a highly attenuated chain of possibilities” and was thus too speculative to satisfy Article III’s standing requirement.

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