Are Three Federalist Society Lawyers Threatening the Supreme Court?

In a monograph released yesterday—but not-quite-technically-endorsed by—the Federalist Society, leading NSA defenders Andrew McCarthy, David Rivkin and Lee Casey appear, Sopranos style, to issue veiled threats to the Supreme Court, warning the justices not put their dirty mitts on the NSA surveillance program, or else.

Here’s some of the evidence:

Page 44: MRC argue that the President has a duty to “fight back” against branches that encroach on his constitutional turf. Specifcially, they say:

the departments were not expected [by the Framers] to take intrusions [on their constitutional authority] lying down … . To the contrary, when the actions of one branch invaded another’s turf, the offended branch was expected to fight back – in truth, was obliged to do so if liberty and constitutional governance were to be vindicated.

Might that duty to “fight back” include a duty by the President (who is constitutionally “preeminent” and “supreme” in foreign affairs, they say) to fight against the incursions of the Supreme Court? Seemingly, the answer is yes, because …

Page 64: The Constitution “contemplates no role for the federal courts in connection with the political judgments whether to conduct surveillance to secure the nation against hostile outsiders.” If the President must “fight back” against other branches’ unconstitutional incursions, and courts have no constitutional authority over surveillance, then MRC seem to be saying the President must fight back not just against Congress but against the Supreme Court.

Page 89: That hint gains more force when MRC conclude by suggesting the Court is the enemy both of security and liberty: “[I]njecting unelected federal judges into the prototypically political arena of foreign intelligence collection,” where “the collective security of the Nation is paramount,” is the “antithesis” of “the protection of the individual and his liberties.” Indeed, (moving on to page 93) “it is not at all clear why Bush administration critics view federal judges as inherently more liberty-conscious than politically accountable executive branch officials.” That’s why, say MRC, “the notion that every single executive activity … has to be checked either by Congress or the judiciary, is absurd.”

In other words, they say, Court interference with the President is unconstituitonal, dangerous to public welfare, antithetical to the preservation of liberty, and simply absurd. The President, in turn, is “obliged” to fight back against other branches when constitutional principle, public welfare, and liberty is at stake. You can fill in the blank spaces: The tenor of the piece is a veiled threat, sotto voce, that the President has the right—indeed the constitutional and even moral duty—to ignore not just Congress but the Supreme Court in its conduct of NSA surveillance.

We are entering a new era of indefinite terrorist crisis. The stakes couldn’t be larger for the principle of judicial supremacy. The Supreme Court faces a tough fight to preserve its role to “say what the law is” and to maneuver the political branches into a settled, agreed-upon framework of twenty-first century security law—made all the more tough by the perilous anti-judicial atmosphere to which Andrew McCarthy, David Rivkin and Lee Casey have now added their own distinctive contribution.