U.S. Supreme Court

Are Some Laws Beyond Judicial Review? Justices Weigh Right to Sue over Wiretap Statute


Anthony M. Kennedy was among the justices Monday who appeared sympathetic to the plight of lawyers who fear their international communications are being monitored under a 2008 wiretap law targeting terrorism.

Kennedy may have the key vote in the case in which the plaintiffs are claiming they were harmed by the law, the Washington Post reports. According to the New York Times, the challenge “appeared to face an uphill climb at the Supreme Court on Monday, but not one quite as steep as many had anticipated.”

At issue in the case is whether the plaintiffs—lawyers, journalists and others—have standing to challenge the statute, which authorizes U.S. monitoring of international emails and phone calls without a warrant for each target. The challengers claim they can sue because they faced a substantial risk their communications would be monitored and took costly measures to avoid it. The government claims any harm is speculative.

Kennedy said he believed lawyers would have to take steps to avoid being monitored. “I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute,” he said.

Justice Antonin Scalia, on the other hand, suggested that some laws are beyond judicial review. “We’ve had cases in the past where it is clear that nobody would have standing to challenge what is brought before this court,” he said. “That just proves that under our system of separated powers, it is none of our business.”

Prior coverage:

ABAJournal.com: “Supreme Court to Consider Right to Sue in Challenge to Wiretap Law”

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