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(Christian Science Monitor)   Supreme Court strikes down lawsuit over communications surveillance, saying plaintiffs' paranoia isn't the court's problem   (csmonitor.com) divider line 50
    More: Interesting, supreme courts, Foreign Intelligence Surveillance Act, free daily, Kafkaesque, supreme court ruling, legal standing, Justice Stephen Breyer, United States Code  
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1507 clicks; posted to Politics » on 26 Feb 2013 at 8:43 PM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2013-02-26 06:06:47 PM
All those Tea Partiers who are outraged at all this surveillance will surely applaud Obama's choices for the Court who all dissented.

Right?

Right?

Anyone who isn't already an Obama supporter giving Obama ANY credit on this?
 
2013-02-26 06:23:31 PM
I'm giving Obama complete credit in this one
 
2013-02-26 08:25:33 PM
While this is silly, it only means that the government hasn't used any of its information to prosecute anyone. As soon as it uses any of the information whoever they use it against has standing to challenge the collection of said information.
 
2013-02-26 08:36:01 PM

vygramul: All those Tea Partiers who are outraged at all this surveillance will surely applaud Obama's choices for the Court who all dissented.

Right?

Right?

Anyone who isn't already an Obama supporter giving Obama ANY credit on this?


I believe you're misunderstanding why those people hate Obama.
 
2013-02-26 08:37:58 PM
And people say the Second amendment is dated.
 
2013-02-26 08:38:20 PM

vygramul: All those Tea Partiers who are outraged at all this surveillance will surely applaud Obama's choices for the Court who all dissented.

Right?

Right?

Anyone who isn't already an Obama supporter giving Obama ANY credit on this?


I'll give him credit for the appointments, I think the FISA amendments were pure crap.  Of course, he voted for the bill back in 2008 in the first place, and it's his Justice department that is defending it now, so I can blame him for that, no matter what his appointments to the court do.
 
2013-02-26 08:47:51 PM

nmrsnr: While this is silly, it only means that the government hasn't used any of its information to prosecute anyone. As soon as it uses any of the information whoever they use it against has standing to challenge the collection of said information.


If by prosecute you mean kill by drones.
 
2013-02-26 08:51:15 PM
Can you guarantee that the government is not listening to my conversations?

No comment.

What if I'm talking to my attorney?

Oh, we just pause...no comment.
 
2013-02-26 08:52:03 PM

nmrsnr: While this is silly, it only means that the government hasn't used any of its information to prosecute anyone. As soon as it uses any of the information whoever they use it against has standing to challenge the collection of said information.


How would you know if they did?  IT'S A SECRET!!!!1111eleventyooneoneone
 
2013-02-26 08:54:09 PM
Did court reject the lawsuit by citing Yossarian v. Catch-22?
 
2013-02-26 08:56:44 PM
The national security state is one of those issues where BSAB (the rhetoric sometimes differs, but talk is cheap), and the pro-"security" wings of both parties feel able to ignore the pro-civil-rights wings.

And to be honest, they're more or less right about this - the average man on the street, to the extent that he bothers to think about it at all, isn't much interested in restraining the ability of the government to "conduct surveillance on terrorists" on niggling little technicalities like, y'know, providing evidence that the parties being surveilled might actually be terrorists.  At the end of the day, the average voter doesn't  really distrust the government all that much - they only distrust the government when it's doing something they personally dislike. or they claim to distrust the government as an excuse to stop the government doing something they dislike.
 
2013-02-26 08:57:44 PM

nmrsnr: While this is silly, it only means that the government hasn't used any of its information to prosecute anyone. As soon as it uses any of the information whoever they use it against has standing to challenge the collection of said information.


Except the information will be secret, and the people being accused will never know it was used against them.
 
2013-02-26 08:59:03 PM

Sir-Marx-A-Lot: If by prosecute you mean kill by drones.


No, foreign nationals abroad have no standing to begin with. Potentially you might have a point with Awlaki, but that's a whole different mess of secret than this case is about.

Doktor_Zhivago: How would you know if they did?  IT'S A SECRET!!!!1111eleventyooneoneone


During the discovery at trial, even if it was secret to the public the lawyer and judge would have access to information as to how the evidence was gathered.
 
2013-02-26 08:59:12 PM

cman: And people say the Second amendment is dated.


Well, get shooting then, ITG.
 
2013-02-26 08:59:40 PM

nmrsnr: While this is silly, it only means that the government hasn't used any of its information to prosecute anyone. As soon as it uses any of the information whoever they use it against has standing to challenge the collection of said information.


It's essentially where we're at. The court has punted a lot of things based on standing. This isn't as outrageous as it sounds.
 
2013-02-26 09:00:59 PM

Tyrone Slothrop: Except the information will be secret, and the people being accused will never know it was used against them.


That's not how discovery works.
 
2013-02-26 09:02:51 PM

GAT_00: vygramul: All those Tea Partiers who are outraged at all this surveillance will surely applaud Obama's choices for the Court who all dissented.

Right?

Right?

Anyone who isn't already an Obama supporter giving Obama ANY credit on this?

I believe you're misunderstanding why those people hate Obama.


Exactly.  Plus somehow they will spin it to where it is President Obama's fault.
 
2013-02-26 09:05:41 PM

Mithiwithi: The national security state is one of those issues where BSAB (the rhetoric sometimes differs, but talk is cheap), and the pro-"security" wings of both parties feel able to ignore the pro-civil-rights wings.



Except it was a 5-4 decision.  Every Republican appointee to the court voted that the plaintiffs had no standing to bring the matter.  Every Democratic appointee voted there was standing. 

The BSAB argument doesn't usuallywork with court decisions, where the distinctions of ideology are often pretty stark.
 
2013-02-26 09:06:21 PM

heavymetal: GAT_00: vygramul: All those Tea Partiers who are outraged at all this surveillance will surely applaud Obama's choices for the Court who all dissented.

Right?

Right?

Anyone who isn't already an Obama supporter giving Obama ANY credit on this?

I believe you're misunderstanding why those people hate Obama.

Exactly.  Plus somehow they will spin it to where it is President Obama's fault.


In this instance, they actually have a valid criticism. Obama's Justice Department is defending it - yes, I know that's their job; if he felt strongly enough about the issue he could order them to stop, like DOMA - and he voted for it as a Senator.
 
2013-02-26 09:09:16 PM

Willas Tyrell: Mithiwithi: The national security state is one of those issues where BSAB (the rhetoric sometimes differs, but talk is cheap), and the pro-"security" wings of both parties feel able to ignore the pro-civil-rights wings.


Except it was a 5-4 decision.  Every Republican appointee to the court voted that the plaintiffs had no standing to bring the matter.  Every Democratic appointee voted there was standing. 

The BSAB argument doesn't usuallywork with court decisions, where the distinctions of ideology are often pretty stark.


And here I am to debunk your talking point. But, go ahead, claim that Liberal's shiat dont stink
 
2013-02-26 09:09:57 PM
Pepper your data trail with some special derp that would only be revealed in a court case and win millions from the government for false prosecution and unlawful wiretapping.

/Otherwise known as a honeypot.
//Now excuse me as I go play with my headless dollies.
 
2013-02-26 09:13:16 PM

cman: Willas Tyrell: Mithiwithi: The national security state is one of those issues where BSAB (the rhetoric sometimes differs, but talk is cheap), and the pro-"security" wings of both parties feel able to ignore the pro-civil-rights wings.


Except it was a 5-4 decision.  Every Republican appointee to the court voted that the plaintiffs had no standing to bring the matter.  Every Democratic appointee voted there was standing. 

The BSAB argument doesn't usuallywork with court decisions, where the distinctions of ideology are often pretty stark.

And here I am to debunk your talking point. But, go ahead, claim that Liberal's shiat dont stink


Did you miss the qualifiers "usually" and "often"?
 
2013-02-26 09:13:49 PM

qorkfiend: cman: Willas Tyrell: Mithiwithi: The national security state is one of those issues where BSAB (the rhetoric sometimes differs, but talk is cheap), and the pro-"security" wings of both parties feel able to ignore the pro-civil-rights wings.


Except it was a 5-4 decision.  Every Republican appointee to the court voted that the plaintiffs had no standing to bring the matter.  Every Democratic appointee voted there was standing. 

The BSAB argument doesn't usuallywork with court decisions, where the distinctions of ideology are often pretty stark.

And here I am to debunk your talking point. But, go ahead, claim that Liberal's shiat dont stink

Did you miss the qualifiers "usually" and "often"?


....yes
 
2013-02-26 09:16:31 PM

qorkfiend: In this instance, they actually have a valid criticism.


Not if they looked at who killed the lawsuit.  These people simply picked up a new reason to hate the President because it's incorrect to say the real reason.
 
2013-02-26 09:17:50 PM

Willas Tyrell: Mithiwithi: The national security state is one of those issues where BSAB (the rhetoric sometimes differs, but talk is cheap), and the pro-"security" wings of both parties feel able to ignore the pro-civil-rights wings.


Except it was a 5-4 decision.  Every Republican appointee to the court voted that the plaintiffs had no standing to bring the matter.  Every Democratic appointee voted there was standing. 

The BSAB argument doesn't usuallywork with court decisions, where the distinctions of ideology are often pretty stark.


Don't get me wrong, I'm glad Obama's (and Clinton's) SC picks aren't on the wrong side here.  But his Justice Department most definitely is.  And it's not like the Justice Department is somehow forced to defend the law here, any more than they were forced to defend DOMA.

/I'd love to see how Sotomayor and Kagan would've ruled on Kelo
//and Roberts and Alito for that matter
 
2013-02-26 09:20:58 PM

GAT_00: qorkfiend: In this instance, they actually have a valid criticism.

Not if they looked at who killed the lawsuit.  These people simply picked up a new reason to hate the President because it's incorrect to say the real reason.


I'm just saying that if they want to criticize Obama for a) voting for this law and b) defending it in court, those criticisms are valid, because unlike most of their criticisms they are factually accurate.
 
2013-02-26 09:23:19 PM

Mithiwithi: /I'd love to see how Sotomayor and Kagan would've ruled on Kelo
//and Roberts and Alito for that matter


I would as well. I don't think it's a given that Scalia and Thomas would come down on the same side in this case, either; it was a very pro-business decision and I personally find it a bit strange Scalia and Thomas joined the dissent.
 
2013-02-26 09:24:42 PM
'Conservative' judges ruling for big government. Surprise!
 
2013-02-26 09:26:14 PM
nmrsnr:

Doktor_Zhivago: How would you know if they did?  IT'S A SECRET!!!!1111eleventyooneoneone

During the discovery at trial, even if it was secret to the public the lawyer and judge would have access to information as to how the evidence was gathered.


Bad joke... i thought the eleventy one would give it away
 
2013-02-26 09:28:42 PM
nmrsnr:

Doktor_Zhivago: How would you know if they did?  IT'S A SECRET!!!!1111eleventyooneoneone

During the discovery at trial, even if it was secret to the public the lawyer and judge would have access to information as to how the evidence was gathered.


That presumes that there will be a criminal trial.

A US citizen in the US working as a journalist has a reasonable expectation of privacy with respect to her telephone calls under the 4th amendment.  The 2008 FISA amendment allows the government to eavesdrop on her calls to foreign nationals "relating to" "international terrorism", which if she's on the international beat could be a whole lot of calls.

In my scenario she'll never be prosecuted criminally, and will never receive discovery regarding this intrusion.  Now whether it is a reasonable intrusion that it meets 4th amendment standards is a different question.  But we'll never know, because as far as the court is concerned she doesn't have standing.

The journalist will not be criminally prosecuted in this scenario.
 
2013-02-26 09:30:49 PM

qorkfiend: Mithiwithi: /I'd love to see how Sotomayor and Kagan would've ruled on Kelo
//and Roberts and Alito for that matter

I would as well. I don't think it's a given that Scalia and Thomas would come down on the same side in this case, either; it was a very pro-business decision and I personally find it a bit strange Scalia and Thomas joined the dissent.


Thomas I'm not so surprised about; he strikes me as being a lot more inclined to hew to the principles of limited government.

Scalia's a bit tougher to figure there.  I'm inclined to cynically suggest that he was happy to stand for "originalism" when it wouldn't affect the outcome, and he might've gone the other way if he thought it would be the deciding vote; but then, I don't have much respect for Scalia.
 
2013-02-26 09:41:10 PM

qorkfiend: GAT_00: qorkfiend: In this instance, they actually have a valid criticism.

Not if they looked at who killed the lawsuit.  These people simply picked up a new reason to hate the President because it's incorrect to say the real reason.

I'm just saying that if they want to criticize Obama for a) voting for this law and b) defending it in court, those criticisms are valid, because unlike most of their criticisms they are factually accurate.


Yeah, but that's pure chance.  Even a blind pitcher will hit a barn once in a while.
 
2013-02-26 09:41:14 PM

Willas Tyrell: That presumes that there will be a criminal trial.A US citizen in the US working as a journalist has a reasonable expectation of privacy with respect to her telephone calls under the 4th amendment.  The 2008 FISA amendment allows the government to eavesdrop on her calls to foreign nationals "relating to" "international terrorism", which if she's on the international beat could be a whole lot of calls.In my scenario she'll never be prosecuted criminally, and will never receive discovery regarding this intrusion.  Now whether it is a reasonable intrusion that it meets 4th amendment standards is a different question.  But we'll never know, because as far as the court is concerned she doesn't have standing.The journalist will not be criminally prosecuted in this scenario.


You're right, but even if she knew about it she still doesn't have standing, since there are no ramifications against her.

IANAL, but there are some really weird rules regarding standing. If the cops break into your place and find someone robbing it the evidence (police testimony) is allowable since the robber doesn't have standing since their place wasn't the one being broken into, and you (if you were so inclined to help out the robber) don't have standing since the police aren't charging you with anything.

I think that's how it'd work anyway, the evidence collected has to harm you in some way before you have standing to challenge it.
 
2013-02-26 09:51:39 PM

vygramul: All those Tea Partiers who are outraged at all this surveillance will surely applaud Obama's choices for the Court who all dissented.

Right?

Right?

Anyone who isn't already an Obama supporter giving Obama ANY credit on this?


I prefer not to give credit to people for things they didn't do.

So in this case OBAMA doesn't get credit because OBAMA voted for it in the first place, and because when it came up to be extended in 2012 OBAMA didn't push for it not to be reauthorized. Once OBAMA does the right thing and pushes to have this law repealed, then, and only then, will OBAMA deserve credit for doing something to stop this stupid law.
 
2013-02-26 10:11:28 PM

nmrsnr: Willas Tyrell: That presumes that there will be a criminal trial.A US citizen in the US working as a journalist has a reasonable expectation of privacy with respect to her telephone calls under the 4th amendment.  The 2008 FISA amendment allows the government to eavesdrop on her calls to foreign nationals "relating to" "international terrorism", which if she's on the international beat could be a whole lot of calls.In my scenario she'll never be prosecuted criminally, and will never receive discovery regarding this intrusion.  Now whether it is a reasonable intrusion that it meets 4th amendment standards is a different question.  But we'll never know, because as far as the court is concerned she doesn't have standing.The journalist will not be criminally prosecuted in this scenario.

You're right, but even if she knew about it she still doesn't have standing, since there are no ramifications against her.

IANAL, but there are some really weird rules regarding standing. If the cops break into your place and find someone robbing it the evidence (police testimony) is allowable since the robber doesn't have standing since their place wasn't the one being broken into, and you (if you were so inclined to help out the robber) don't have standing since the police aren't charging you with anything.

I think that's how it'd work anyway, the evidence collected has to harm you in some way before you have standing to challenge it.


Both the journalist and the homeowner in your example would have standing to pursue civil actions pursuant to 42 USC 1983.
 
2013-02-26 10:15:15 PM

qorkfiend: GAT_00: qorkfiend: In this instance, they actually have a valid criticism.

Not if they looked at who killed the lawsuit.  These people simply picked up a new reason to hate the President because it's incorrect to say the real reason.

I'm just saying that if they want to criticize Obama for a) voting for this law and b) defending it in court, those criticisms are valid, because unlike most of their criticisms they are factually accurate.



I agree, you have a very valid point.  Any way you look at it; no matter how the SCOTUS's justices voted, President Obama could have ordered the Justice Department not to defend it.  Odds are the reason the GOP doesn't attack President Obama on it is they agree with the law.  Sucks that it is only crap like this which can get "bi-partisan" support.
 
2013-02-26 10:38:31 PM

GAT_00: vygramul: All those Tea Partiers who are outraged at all this surveillance will surely applaud Obama's choices for the Court who all dissented.

Right?

Right?

Anyone who isn't already an Obama supporter giving Obama ANY credit on this?

I believe you're misunderstanding why those people hate Obama.


i45.photobucket.com
 
2013-02-26 11:18:04 PM

nmrsnr: Tyrone Slothrop: Except the information will be secret, and the people being accused will never know it was used against them.

That's not how discovery works.


"in respect to national security"
 
2013-02-26 11:29:32 PM
Sorry folks, we're a long way from 'trap-and-trace' warrants and the legitimacy of mic-ing through hotel walls. You're your own keeper at this pont. Learn enough to encrypt your communications, and data.

Maybe that'll change when judges grew up with the interwebs are being appointed, til then, sadly, it's on you. Proxies, TOR, fully HD encryption, uploading and/or shipping your HD when you travel cross borders. Yeah, it's a pain in the ass, but freedom and privacy usual are.
 
2013-02-26 11:36:52 PM

Thingster: nmrsnr: Tyrone Slothrop: Except the information will be secret, and the people being accused will never know it was used against them.

That's not how discovery works.

"in respect to national security"




A throw-away quote is not a refutation. Believe it or not, that's not how it works.
 
2013-02-26 11:39:17 PM

cman: But, go ahead, claim that Liberal's shiat dont stink


Except that no one ever claims that.  What is claimed, instead, is that while liberal shiat certainly stinks, Republican shiat stinks a thousand times worse.

And this claim is so obviously true on the face of it that for anyone to try to deny it is nothing more than blatant partisan shilling at its worst.

You should know this.  When you pretend that you don't know this - how do you think that makes you look to the rest of us?
 
2013-02-26 11:58:18 PM
At some point the government developed the theory that they can conduct unlimited surveillance of everything, collect, index, and store any information, and it's legal as long as it's automatic and secret, and the information is hidden from literally every person until needed. Legally, by this theory, the information doesn't exist until a human being presents legal cause to access it. Reasonable suspicion/probable cause/search warrants then function to authorize access to information the government already possesses, rather than authorizing information collection. "Search" is redefined to mean receiving, rather than getting.
 
2013-02-27 02:09:07 AM
Wilhelm Zaisser and Lavrentiy Beriya approve.
 
2013-02-27 03:49:11 AM

cman: Willas Tyrell: Mithiwithi: The national security state is one of those issues where BSAB (the rhetoric sometimes differs, but talk is cheap), and the pro-"security" wings of both parties feel able to ignore the pro-civil-rights wings.


Except it was a 5-4 decision.  Every Republican appointee to the court voted that the plaintiffs had no standing to bring the matter.  Every Democratic appointee voted there was standing.
The BSAB argument doesn't usuallywork with court decisions, where the distinctions of ideology are often pretty stark.

And here I am to debunk your talking point. But, go ahead, claim that Liberal's shiat dont stink


Kelo just said that local areas have the right to decide, through their elected pubic officials, what qualifies as "public use". It's a pro states rights decision.
 
2013-02-27 03:58:54 AM

nmrsnr: Willas Tyrell: That presumes that there will be a criminal trial.A US citizen in the US working as a journalist has a reasonable expectation of privacy with respect to her telephone calls under the 4th amendment.  The 2008 FISA amendment allows the government to eavesdrop on her calls to foreign nationals "relating to" "international terrorism", which if she's on the international beat could be a whole lot of calls.In my scenario she'll never be prosecuted criminally, and will never receive discovery regarding this intrusion.  Now whether it is a reasonable intrusion that it meets 4th amendment standards is a different question.  But we'll never know, because as far as the court is concerned she doesn't have standing.The journalist will not be criminally prosecuted in this scenario.

You're right, but even if she knew about it she still doesn't have standing, since there are no ramifications against her.

IANAL, but there are some really weird rules regarding standing. If the cops break into your place and find someone robbing it the evidence (police testimony) is allowable since the robber doesn't have standing since their place wasn't the one being broken into, and you (if you were so inclined to help out the robber) don't have standing since the police aren't charging you with anything.

I think that's how it'd work anyway, the evidence collected has to harm you in some way before you have standing to challenge it.


Those restrictive rules on standing are not some innocent thing inherent to the system- they were deliberately crafted by conservative jurists to limit people's access to judicial remedies in public interest matters and to limit the scope of a lot of Warren Court rulings. Rules on standing could easily be much broader- it's just based on the fact that the Judiciary is limited to actual cases or controversy by the Constitution- basically, you were harmed by a ruling. In this case, these surveillance laws forced many of the lawyers in the suit to go to extensive and expensive measures to evade surveillance that may or may not have been occurring- meaning that they suffered a tangible harm from the law regardless of whether they were actually being monitored or not. The tight restrictions the Court has imposed on standing recently are entirely absurd, and ensure that many laws are simply beyond the reach of the judiciary. Which is exactly what they're supposed to do.

Not quite as sexy a legal issue as abortion or gay rights, but standing is critical, and there has been a concerted, coordinated effort by right wing judges to limit it.
 
2013-02-27 08:15:30 AM
cptjeff:

Those restrictive rules on standing are not some innocent thing inherent to the system- they were deliberately crafted by conservative jurists to limit people's access to judicial remedies in public interest matters and to limit the scope of a lot of Warren Court rulings. Rules on standing could easily be much broader- it's just based on the fact that the Judiciary is limited to actual cases or controversy by the Constitution- basically, you were harmed by a ruling. In this case, these surveillance laws forced many of the lawyers in the suit t ...

IIRC many of the pre-Wade abortion decisions were tossed on standing - it takes more than 9 months for a case to work it's way to the Supreme Court, by which time the pregnancy at issue was over (one way or another), meaning that the given case no longer had an active controversy that needed to be addressed.

OK, I pulled Roe.  From Justice Blackmun's majority opinion:
"The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. ...But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid."
 
2013-02-27 10:07:49 AM
 
2013-02-27 12:48:39 PM

cptjeff: Those restrictive rules on standing are not some innocent thing inherent to the system- they were deliberately crafted by conservative jurists to limit people's access to judicial remedies in public interest matters and to limit the scope of a lot of Warren Court rulings. Rules on standing could easily be much broader- it's just based on the fact that the Judiciary is limited to actual cases or controversy by the Constitution- basically, you were harmed by a ruling. In this case, these surveillance laws forced many of the lawyers in the suit to go to extensive and expensive measures to evade surveillance that may or may not have been occurring- meaning that they suffered a tangible harm from the law regardless of whether they were actually being monitored or not. The tight restrictions the Court has imposed on standing recently are entirely absurd, and ensure that many laws are simply beyond the reach of the judiciary. Which is exactly what they're supposed to do.

Not quite as sexy a legal issue as abortion or gay rights, but standing is critical, and there has been a concerted, coordinated effort by right wing judges to limit it.


To make the problem even more difficult, the government has repeatedly argued that it has no duty to provide any evidence of what its surveillance is actually turning up.  In the case the EFF filed, Jewel v. NSA, the case was originally tossed based on the immunity provisions in the 2008 FISA authorization.  So, they refiled it against the government, who then argued that the plaintiff had no standing - she couldn't prove that she'd been wiretapped.  Well, meantime, the EFF is trying to get its hands on the surveillance records to actually SEE if the woman's communications had been pulled through that AT&T wiring closet in Folsom, but the gov't then argued that those records were privileged, and even the non "top secret" records were "inextricably intertwined" with the secret records, and therefore, they shouldn't have to show anything.

So, you've got evidence that AT&T was siphoning off every communication that passed over its California network into this wiring closet in Folsom.  But you can't figure out what they were siphoning, who they were siphoning from, whether it was legal for them to siphon it, or whether it's still continuing.  And the courts won't let you do any of this, based off a secret memo with secret evidence that the judge isn't even allowed to see, prepared by the Justice department, who just also happens to be the defendant.  Talk about Kafkaesque.
 
2013-02-27 01:04:13 PM

Willas Tyrell: cptjeff:

Those restrictive rules on standing are not some innocent thing inherent to the system- they were deliberately crafted by conservative jurists to limit people's access to judicial remedies in public interest matters and to limit the scope of a lot of Warren Court rulings. Rules on standing could easily be much broader- it's just based on the fact that the Judiciary is limited to actual cases or controversy by the Constitution- basically, you were harmed by a ruling. In this case, these surveillance laws forced many of the lawyers in the suit t ...

IIRC many of the pre-Wade abortion decisions were tossed on standing - it takes more than 9 months for a case to work it's way to the Supreme Court, by which time the pregnancy at issue was over (one way or another), meaning that the given case no longer had an active controversy that needed to be addressed.

OK, I pulled Roe.  From Justice Blackmun's majority opinion:
"The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. ...But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid."


Nice cite. I love that Nixon thought Blackmun would be a clone of Warren Burger.

\Well, actually, he was at first.
\\Working to write Roe is a big part of what turned him around.
 
2013-02-27 03:11:22 PM

Mithiwithi: Don't get me wrong, I'm glad Obama's (and Clinton's) SC picks aren't on the wrong side here. But his Justice Department most definitely is. And it's not like the Justice Department is somehow forced to defend the law here, any more than they were forced to defend DOMA.


Pay closer attention.  They "defended" DOMA in order to get it to the second appeals court where the "rational basis" standard didn't apply, and where they were under no obligation to defend it on those grounds.  As a consequence of this "Defense", the justice department succeeded in having DOMA ruled unconstitutional.  That's what I call #winning.

On the FISA issue, I don't see how they could be positioning themselves into anythign other than "moar authority" though, so I'll give you a hearty THIS on the justice department being on the wrong side of this.  I just wanted to point out that the DOMA business was actually 9 dimensional chess.
 
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