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Klein writes: "When it comes to surveillance, the composition of the bench is entirely in his hands and so, as a result, is the extent to which the National Security Agency and the Federal Bureau of Investigation can spy on citizens."

Chief Justice of the Supreme Court John Roberts. (photo: unknown)
Chief Justice of the Supreme Court John Roberts. (photo: unknown)

Chief Justice Roberts Is Awesome Power Behind FISA Court

By Ezra Klein, Bloomberg News

07 July 13


hief justice of the U.S. is a pretty big job. You lead the Supreme Court conferences where cases are discussed and voted on. You preside over oral arguments. When in the majority, you decide who writes the opinion. You get a cool robe that you can decorate with gold stripes.

Oh, and one more thing: You have exclusive, unaccountable, lifetime power to shape the surveillance state.

To use its surveillance powers - tapping phones or reading e-mails - the federal government must ask permission of the court set up by the Foreign Intelligence Surveillance Act. A FISA judge can deny the request or force the government to limit the scope of its investigation. It's the only plausible check in the system. Whether it actually checks government surveillance power or acts as a rubber stamp is up to whichever FISA judge presides that day.

The 11 FISA judges, chosen from throughout the federal bench for seven-year terms, are all appointed by the chief justice. In fact, every FISA judge currently serving was appointed by Chief Justice John Roberts, who will continue making such appointments until he retires or dies. FISA judges don't need confirmation - by Congress or anyone else.

No other part of U.S. law works this way. The chief justice can't choose the judges who rule on health law, or preside over labor cases, or decide software patents. But when it comes to surveillance, the composition of the bench is entirely in his hands and so, as a result, is the extent to which the National Security Agency and the Federal Bureau of Investigation can spy on citizens.

"It really is up to these FISA judges to decide what the law means and what the NSA and FBI gets to do," said Julian Sanchez, a privacy scholar at the Cato Institute. "So Roberts is single handedly choosing the people who get to decide how much surveillance we're subject to."

Thin Record

There's little evidence that this is a power Roberts particularly wants. Tom Clancy, a professor at the University of Mississippi School of Law, has analyzed Roberts's record on surveillance issues and been impressed mostly by how little interest in them Roberts displays. The chief justice doesn't push the Supreme Court to take cases related to surveillance powers, and when such cases do come up, he tends to let another justice write the opinion. "He does not have much of a record in this area at all," Clancy said.

To the degree Roberts's views can be divined, he leans toward giving the government the authority it says it needs. "He's been very state oriented," Clancy said. "He's done very little writing in the area, but to the extent he has, almost without exception, he's come down in favor of the police."

Roberts's nominations to the FISA court are almost exclusively Republican. One of his first appointees, for instance, was Federal District Judge Roger Vinson of Florida, who not only struck down the Affordable Care Act's individual mandate, but struck down the rest of the law, too. (The Supreme Court disagreed.) Vinson's term expired in May, but the partisan tilt on the court continues: Only one of the 11 members is a Democrat.

Critics contend the FISA court is too compromised to conduct genuine oversight. It meets in secret, and the presiding judge hears only the government's argument before issuing a decision that can't be appealed or even reviewed by the public. "Like any other group that meets in secret behind closed doors with only one constituency appearing before them, they're subject to capture and bias," said Elizabeth Goitein, co-director of the Brennan Center for Justice's Liberty and National Security Program.

Startling Success

A Reuters investigation found that from 2001 to 2012, FISA judges approved 20,909 surveillance and property search warrants while rejecting only 10. Almost 1,000 of the approved requests required modification, and 26 were withdrawn by the government before a ruling. That's a startling win rate for the government.

Perhaps the federal government is simply very judicious in invoking its surveillance authority. But it's also possible that empowering the chief justice - especially one with an expansive view of state police powers - to appoint every FISA judge has led to a tilted court. That's probable even if the chief justice has been conscientious in his selections.

Harvard Law School professor and Bloomberg View columnist Cass R. Sunstein has found that judges are more ideologically rigid when their fellow judges are from the same party, and more moderate when fellow judges are from the other party. "Federal judges (no less than the rest of us) are subject to group polarization," he wrote.

The FISA court is composed of federal judges. All are appointed by the same man. All but one hail from the same political party. And unlike judges in normal courts, FISA judges don't hear opposing testimony or feel pressure from colleagues or the public to moderate their rulings. Under these circumstances, group polarization is almost a certainty. "There's the real possibility that these judges become more extreme over time, even when they had only a mild bias to begin with," Cato's Sanchez said.

Just as the likelihood of polarization in the FISA court is more pronounced than in normal courts, the stakes are also higher. If trial judges are unduly biased, their rulings can be overturned on appeal. But FISA judges decide the momentous questions of who the government may spy on and how. Their power is awesome, and their word is final. And, as the great legal scholar Kanye West said, no one man should have all that power. your social media marketing partner


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+21 # X Dane 2013-07-07 23:33
Justice Roberts, definitely has MUCH too much power, and that he is NOT impartial is crystal clear, since he is .....with on exception....on ly choosing republican judges.
He is always finding for the big corporation and the powerful..... Average citizens do not have a chance for justice in our highest court. This is the land of the free?......Just ice for ALL?????
+5 # Barbara K 2013-07-08 12:26
X Dane: You are so correct. No one who was not elected by the people should not have that much power. I think these judges should be elected officials with term limits and age limits. Some drastic changes need to be made or we are going nowhere fast. He even looks sneaky and crooked. Wish there was a way to get rid of him. There should be a way to rid ourselves of these crooks on our major court.

-4 # SMoonz 2013-07-08 14:02
Ok, you are against these judges having so much power. I am with you on that. Although the FISA court should not even exist, period as it is an excuse to spy on its citizens. However, you are all for the NSA spying on other countries and citizens. How do you reconcile that?
+3 # edge 2013-07-09 06:32
IMO, there should be an ACLU "type" on the FISA court that has the RIGHT to appeal to a single member of SCOTUS of their choice.

If that member of SCOTUS has concerns then the full court should be forced to rule!

IMO, that should be our MINIMUM safeguard!
+8 # grouchy 2013-07-08 02:29
This guy is proving to be a real turkey as far as doing what is right for us citizens (vs. the 1%), but he IS pretty!
+25 # RMDC 2013-07-08 04:41
From this description of the FISA court, it is not a court at all or in any sense of the word. These are rubber stamp administrators. They provide a legal cover or fig leaf for what the NSA wants to do.

How can it be a court if it does not hear counter arguments? Do we even know if NSA people who present the case are sworn to tell the truth? Probably not.

This is the father of all Kangaroo Courts.
+20 # MainStreetMentor 2013-07-08 05:06
Justices of the SCOTUS need term limits. ALL judges need the approval of the citizens - NEVER by appointment.
+10 # Texas Aggie 2013-07-08 09:11
The problem with electoral selection of judges is well illustrated in WV where Blankenship?, the coal magnate, bought the state supreme court by financing their electoral campaigns. Another good illustration is Texas where the whole bar is republican and far right wing republican at that. One of their senior judges recently got into hot water with some vicious racist comments.
+19 # John Escher 2013-07-08 06:49
What an unfortunate conjunction of repressive politics and historical development (of the internet).

Our government was not designed to run this way. And it does not seem, at this time, to have a workable mechanism by which it can catch up with this sea change in world history.

And so we lose our best ideals as we slide from regressive to repressive and directly into the Big Brotherism to which conservatives used to object.
+28 # Billy Bob 2013-07-08 06:50
When those of us who were paying attention back in the 1980s said the right-wing wanted secret courts we were laughed at and called "conspiracy theorists".

Now, the right pretends those conversations never occurred and simply believes secret courts are needed to protect us from the Constitution.

It's an old pattern:



+19 # mike/ 2013-07-08 06:52
is this like a blurring of the 'separation' of powers? shouldn't this be an Executive Branch decision with Legislative (Senate) approval since they are federal judges?

did the Repugs in passing the bill set up a 'Star Chamber' system?
+12 # Billy Bob 2013-07-08 09:57
Didn't you get the memo? "Sept. 11th changed everything".

Because some foreigners committed suicide to blow up some buildings and an American president intentionally did nothing to stop them, we must now accept that all ordinary law abiding American citizens can be made to "disappear" at the whim of the Republican partisans who control the judicial branch of our secret shadow government.
+5 # mary3r1ch 2013-07-08 14:21
Perhaps we need to mobilize some action to get the law changed with regard to how FISA judges are chosen and what oversight is given to their decisions. Common Cause? People For? ACLU? This is potentially very threatening to an open society.

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