6th Circuit Dismisses One Case Against NSA Surveillance

Please note that this post is from 2007. Evaluate with care and in light of later events.

The 6th Circuit Court of Appeals “ducks” the issues by dismissing on a technical ground (lack of standing) to avoid ruling on any substantive points:

The majority in a three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled on a narrow ground, saying the plaintiffs, including lawyers and journalists, could not show injury direct and concrete enough to allow them to have standing to sue.

Because it is extremely difficult to show concrete injury from the highly classified program, the effect of the ruling was to insulate the program from judicial scrutiny in ordinary federal courts.

(From the NY Times article.)

Searching for narrow grounds to dismiss a case is not at all uncommon for courts seeking to avoid controversial issues. This is also common when a majority feel that it ought to be left to another branch, such as the legislative branch, to step in and deal with the issue.

Is this cowardice or a proper desire to avoid “judicial activism” and stepping on the toes of other branches?

See also:

• The Volokh Conspiracy