WASHINGTON — The Supreme Court on Tuesday turned back a challenge to a federal law that broadened the government’s power to eavesdrop on international phone calls and emails.
The decision, by a 5-4 vote that divided along ideological lines, probably means the Supreme Court will never rule on the constitutionality of that 2008 law.
More broadly, the ruling illustrated how hard it is to mount court challenges to a wide array of anti-terrorism measures in light of the combination of government secrecy and judicial doctrines limiting access to the courts.
“Absent a radical sea change from the courts, or more likely intervention from the Congress, the coffin is slamming shut on the ability of private citizens and civil liberties groups to challenge government counterterrorism policies, with the possible exception of Guantanamo," said Stephen I. Vladeck, a law professor at American University.
Writing for the majority, Justice Samuel Alito said that the journalists, lawyers and human rights advocates who challenged the constitutionality of the law could not show they had been harmed by it and so lacked standing to sue. The plaintiffs’ fear that they would be subject to surveillance in the future was too speculative to establish standing, he wrote.
In dissent, Justice Stephen Breyer wrote that the harm claimed by the plaintiffs was not speculative. “Indeed," he wrote, “it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen."