Chief Justice John Roberts Appointed Every Judge on the FISA Court

Is that too much power for one person?

Supreme Court Chief Justice John Roberts participates in the dedication of the Newseum in Washington on April 11, 2008.     (UPI Photo/Roger L. Wollenberg)
National Journal
Garrett Epps, The Atlanic
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Garrett Epps, The Atlanic
Aug. 12, 2013, 7:02 a.m.

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.”

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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.

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