As I noted in an earlier post, I’m supportive of Bob’s legal argument that the President’s NSA surveillance program is illegal and unconstitutional. (My level of certainty on this: moderate). But for me this doesn’t settle the matter. There’s a separate question: What should the Supreme Court do about it?
For me, this is the hard but all important question. In Baker v. Carr, the Court suggested (in so many words) that justices may want to avoid resolution of a constitutional question if, for example, there is a significant chance another branch might ignore its decision. The reason for this seemingly weak-kneed approach to constitutional adjudication is straightforward. The Supreme Court, a tribunal of nine geriatric lawyers, doesn’t have much muscle. It can’t arrest a recalcitrant President. It relies on the force of its mystique as the oracle of our fundamental law and its soft political power to confer public legitimacy on political branch actions. That’s generally enough to compel the grudging respect and deference of Congress and the President. But in extraordinary times, its possible that a headstrong President convinced of the rightness of his mission, and backed by popular support and a waffling Congress, might simply ignore the Supreme Court. If that happens too often, the Court risks losing its power to command. And a disrespected Court that is repeatedly ignored is far, far worse for the long-term protection of liberty than a Court that occasionally ducks the wrong fight.
So what should the Court do about the NSA surveillance program?