A stone’s throw from lawlessness

Earlier this week the Chicago Tribune published an op-ed column by University of Chicago Professor Geoffrey Stone on the NSA decision by Judge Anna Diggs Taylor. In the column Professor Stone attempts to lend a veneer of respectability to Judge Taylor’s widely derided opinion; instead he makes himself a figure whom it is difficult to respect.

In the NSA case the government raised issues that would and possibly should have precluded a decision on the merits of the case. One of these, for example, is the issue of standing — a requirement based on Article III of the Constitution limiting the federal judicial power to “cases or controversies.” If the plaintiffs in a given case lack standing to bring it, a federal court is powerless to hear the case regardless of the importance of the claims plaintiffs seek to litigate. Judge Taylor blows through the issue of standing more or less as she does the other issues in the case, but adds this pregnant comment:

Although this court is persuaded that Plaintiffs have alleged sufficient injury to establish standing, it is important to note that if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President’s actions in warrantless wiretapping, in contravention of FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.

It’s a comment laced with irony; one may fairly infer despite Judge Taylor’s disclaimer that standing is one constitutional limitation she will not let restrain her in the exercise of the power she wields as a federal judge. Remarkably for a professor of law, Stone stands on the sidelines cheering Judge Taylor on as she shakes off her own constitutional fetters:

[I]t would have been easy for Taylor to evade her responsibility. She could have ducked the merits of the case by endorsing the government’s contention that the case should be dismissed either because of the state secrets privilege or because the plaintiffs lacked standing. Many judges, I fear, would have taken that route.

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Of course, the government will appeal Taylor’s decision. What will happen on appeal is anyone’s guess. I will venture a partial prediction: If the appellate judges do not hide behind the standing and state secrets arguments, they will uphold Taylor’s ruling. On the merits, the illegality of the NSA program is simply too clear to elide.

Professor Stone doesn’t think much of the standing or state secrets issues, and he doesn’t fairly confront them in his column. Professor Stone seems to think, however, that a judge who finds that a plaintiff’s lack of standing precludes his consideration of plaintiff’s claims is “ducking” his responsibility rather than fulfilling it. Professor Stone is ducking his own responsibility as a prominent teacher of constitutional law in disseminating such misleading instruction.

JOHN adds: Stone’s column is of a piece with Taylor’s opinion. Stone, like Taylor, offers his own opinions in a conclusory fashion without ever mentioning the half-dozen federal appellate decisions that support the legality of the NSA program. The law business sure is easy when you get to pretend that adverse precedents don’t exist!