John Roberts has a way of inserting himself into almost every political setting. He upstaged Barack Obama at his first inauguration; he made his the most important single vote cast in the 2012 election; he has upended 2014 politics with his opinion gutting the Voting Act. Now it turns out he has assumed a key role in the war on terror.
So it seems entirely reasonable for The New York Times's Linda Greenhouse to suggest that "we have given the chief justice—any chief justice, not just this one—too much to do."
The question is being raised now because recent leaks give us a disturbing look into the secretive Foreign Intelligence Surveillance Court. The chief justice selects the 11 district judges who serve on this court; his discretion is subject only to a few limits: the judges must come from at least seven appeals-court circuits, one must be a district judge of the District of Columbia, and no fewer than three must live within 20 miles of D.C.
The FISA panel was originally conceived as simply a mechanism to grant warrants for surveillance—the equivalent of a magistrate who looks at an affidavit from a police officer and then orders a search or seizure. It's an important function, but pretty pedestrian (or as lawyers like to say, "ministerial").
Since 2007 or so, though, the FISA Court has bulked up like A-Rod. The New York Times revealed that it has developed a complex case law interpreting the Surveillance Act, the Fourth Amendment, and its own jurisdiction. That case law—like the orders the Court issues, like the briefs the government files, and like the legal opinions from which those briefs flow—are, of course, secret.
An entire shadow Constitution may be growing up, parsed by a court appointed by John Roberts. That secret growth seems more alarming because of reports that the chief justice's picks for the secret court have been skewed toward the Republican side of the bench.
The chief appoints the members of many specialized judicial panels. But the FISA Court has morphed into a very powerful institution. Perhaps it's time to change the way it is constituted.
Professor Stephen Vladeck, a separation-of-powers specialist who teaches at American University School of Law, argues that when FISA was passed it made sense to give the power of appointment to the chief justice—but that "what the FISA Court does has changed over time." The degree of programmatic responsibility it has taken on, he says, may be unprecedented.
For that reason, it may make sense to spread the responsibility for the makeup of the FISA courts. Vladeck suggests either creating a stand-alone specialized FISA Court, appointed by the president and confirmed by the Senate, or confining the present FISA Court to warrant approval, with a transfer of the more complex oversight of surveillance programs to panels of an existing court, perhaps one such as the D.C. Circuit Court of Appeals, which has experience in the intricacies of administrative law.
Should the chief keep the appointment power? Perhaps we can learn from recent history. In 1983, Chief Justice Warren Burger lobbied Congress to create a new national Court of Appeals, made up of already-confirmed sitting judges. In different proposals, the power of appointment would either be held by the chief alone, or by the Supreme Court as a whole.
Officials at the Reagan White House had little use for the idea. Appointment by the chief justice, or by the Court as a whole, one wrote, "constitutes an unprecedented infringement on the president's appointment power." Appointment by the chief alone would be likely to produce a solidly conservative court, but "liberal members of Congress, the courts, and the bar are likely to object." Even worse, if Democratic nominees were named, they might reverse the judgments of Reagan appointees on the lower courts.
"[T]he new court would be qualitatively different" than specialized panels appointed by the chief justice, this Reagan official wrote, "and its members would have significantly great powers than regular circuit judges." If the project went forward, "we should scrupulously guard the president's appointment powers."
It was a shrewd assessment. The power to name judges to any important court is a major one, one that involves the president's power, the appearance of integrity and impartiality on the nation's courts, and the crucial issue of which judges get the last word on important questions.
The author of those memos was 28 years old when he opposed the new court. Today he is the chief justice of the United States.