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A Tale of Two Judges

The NSA on trial.

Jan 13, 2014, Vol. 19, No. 17 • By GARY SCHMITT
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Not that long ago, one could assume that a judge with an activist approach to interpreting the Constitution was probably left-of-center politically and, accordingly, believed that overturning precedents was often necessary in order to make the Constitution relevant to present issues and alive to evolving democratic mores. Conversely, a judge holding a philosophy of restraint was more than likely right-of-center in his political beliefs and inclined to respect court precedents as the accumulated wisdom of the body politic, tying current and previous generations back to the Constitution’s text and founding principles.

No Such Agency

No more—or, at least, not so readily. Last month, a judge nominated to the federal bench by “originalist” President George W. Bush summarily swept aside longstanding precedent and the accumulated and numerous judgments of his colleagues, declaring the National Security Agency’s collection of telephony metadata as not only “likely unconstitutional” but “Orwellian” in character. A little less than two weeks later, however, another federal judge—this one appointed by President Bill Clinton, a graduate of that bastion of “progressive” legal theory, Yale Law—found the program not only in accord with Fourth Amendment prescriptions and existing case law but also acting as an essential “counter-punch” to the terrorists who brought us 9/11.

The two decisions (Klayman v. Obama and ACLU v. James Clapper) have generated public confusion over the constitutionality of the NSA’s data collection program—a kind of judicial “he-said, she-said” standoff. But once the substance of the two opinions is taken into account, it’s clear who got it right.

In the first case, Judge Richard Leon’s opinion is dotted with ad hominem arguments and hyperbole. In the second, Judge William Pauley stays with the facts, is sensible in applying existing case law, and shows apt deference both to previous decisions by his colleagues on the bench and the two political branches that established and oversee the NSA program.

The cases both consider two major questions: first, whether plaintiffs have a reasonable expectation of privacy that the metadata program violates (and, hence, becomes substantively a government “search” under the Fourth Amendment); and, second, if they do, whether the search is reasonable given that amendment’s injunction against “unreasonable searches and seizures.”

On the first question, Judge Leon spends a goodly portion of his opinion arguing that the existing precedent, Smith v. Maryland (1979), is just too old to be of any relevance today. In Smith, the Supreme Court ruled that the use of a telephone pen register by police to capture a suspect’s call data was not a violation of Smith’s privacy rights since there was no “legitimate expectation of privacy.” The information collected (the numbers dialed from a particular phone and those calling in) would not only be known to the phone company as it facilitated the call, the Court argued, but also would be recorded, if only to allow the company to bill its customers later.

According to Leon, since we now use our cell phones ubiquitously and technology has transformed them into cameras, mail transmitters, calendars, music players, maps, and even pseudo-lighters at concerts, the Court in 1979 could not “have ever imagined how the citizens of 2013 would interact with their phones.” Whereas in Smith, the Court was reviewing a onetime, targeted request, the NSA program is a “daily, all-encompassing, indiscriminate dump of phone metadata” that amounts to “the stuff of science fiction.” And while Leon admits that, “as in Smith, the types of information” currently sought by the NSA “are relatively limited: phone numbers dialed, date, time and the like,” given how we use our phones today, the prospect of what the NSA could derive from those data should send a chill down everyone’s back. By Judge Leon’s lights, “I dial, therefore I am.” He’s seemingly worried that the very instrument of our “self-expression, even self-determination” is at risk.

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