ACLU v. United States ( 2021 )

Cite as: 595 U. S. ____ (2021) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
AMERICAN CIVIL LIBERTIES UNION v.
UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES FOREIGN INTELLIGENCE SURVEILLANCE
COURT OF REVIEW
No. 20–1499. Decided November 1, 2021
The petition for a writ of certiorari is denied.
JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR
joins, dissenting from the denial of certiorari.
In response to allegations of wrongdoing by the Nation’s
intelligence agencies, in 1975 Congress convened a select
committee chaired by Senator Frank Church to investigate.
See S. Rep. No. 94–755, p. v (1976). Ultimately, the Church
committee issued a report concluding that the federal gov-
ernment had, over many decades, “intentionally disre-
garded” legal limitations on its surveillance activities and
“infringed the constitutional rights of American citizens.”
Id., at 137.
In the wake of these findings, Congress enacted the For-
eign Intelligence Surveillance Act of 1978. See 92 Stat. 1783(codified at 50 U. S. C. §1801 et seq.). The statute created
the Foreign Intelligence Surveillance Court (FISC) and em-
powered it to oversee electronic surveillance conducted for
foreign intelligence purposes. See §1803(a). The statute also
created the Foreign Intelligence Surveillance Court of Re-
view (FISCR) to hear appeals from the FISC’s rulings. The
FISC now comprises 11 Article III federal district court
judges, and the FISCR comprises 3 additional Article III
judges. §§1803(a)–(b).
With changes in technology and thanks to various legis-
lative amendments, these courts have come to play an in-
creasingly important role in the Nation’s life. Today, the
2 ACLU v. UNITED STATES
GORSUCH, J., dissenting
FISC evaluates extensive surveillance programs that carry
profound implications for Americans’ privacy and their
rights to speak and associate freely. See, e.g., ACLU v.
Clapper, 785 F. 3d 787, 818 (CA2 2015). Like other courts,
the FISC may announce its rulings in opinions that explain
its interpretation of relevant statutory and constitutional
law. Unlike most other courts, however, FISC holds its pro-
ceedings in secret and does not customarily publish its de-
cisions. See §1803(c); In re Motion for Release of Court Rec-
ords, 526 F. Supp. 2d 484, 488 (FISC 2007).
In 2016, the American Civil Liberties Union (ACLU)
sought to test this practice. It filed motions with the FISC
asserting that the First Amendment provides a qualified
right of public access to opinions containing significant le-
gal analysis—even if portions must be redacted. App. to
Pet. for Cert. 21a. The ACLU argued that the FISC had au-
thority to consider its motion pursuant to its inherent
“power over its own records and files.” Id., at 18a (internal
quotation marks omitted). The organization noted that
other courts have a long history of exercising just this power
to ensure public access to their judicial decisions. In the
end, however, both the FISC and the FISCR refused the
ACLU’s request. In fact, they refused even to consider the
question, claiming they lacked authority to do so. Id., at 2a–
7a (citing 50 U. S. C. §1803(k); 28 U. S. C. §1254(2)).
Now the ACLU has filed a petition for certiorari asking
this Court to review these decisions. In response, the gov-
ernment does not merely argue that the lower court rulings
should be left undisturbed because they are correct. The
government also presses the extraordinary claim that this
Court is powerless to review the lower court decisions even
if they are mistaken. On the government’s view, literally no
court in this country has the power to decide whether citi-
zens possess a First Amendment right of access to the work
of our national security courts.
Today the Court declines to take up this matter. I would
Cite as: 595 U. S. ____ (2021) 3
GORSUCH, J., dissenting
hear it. This case presents questions about the right of pub-
lic access to Article III judicial proceedings of grave national
importance. Maybe even more fundamentally, this case in-
volves a governmental challenge to the power of this Court
to review the work of Article III judges in a subordinate
court. If these matters are not worthy of our time, what is?
Respectfully, I dissent.