6th Circuit Dismisses One Case Against NSA Surveillance

The 6th Circuit Court of Appeals “ducks” the issues by dis­miss­ing on a tech­ni­cal ground (lack of stand­ing) to avoid rul­ing on any sub­stan­tive points:

The major­ity in a three-​​judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled on a nar­row ground, say­ing the plain­tiffs, includ­ing lawyers and jour­nal­ists, could not show injury direct and con­crete enough to allow them to have stand­ing to sue.

Because it is extremely dif­fi­cult to show con­crete injury from the highly clas­si­fied pro­gram, the effect of the rul­ing was to insu­late the pro­gram from judi­cial scrutiny in ordi­nary fed­eral courts.

(From the NY Times arti­cle.)

Searching for nar­row grounds to dis­miss a case is not at all uncom­mon for courts seek­ing to avoid con­tro­ver­sial issues. This is also com­mon when a major­ity feel that it ought to be left to another branch, such as the leg­isla­tive branch, to step in and deal with the issue.

Is this cow­ardice or a proper desire to avoid “judi­cial activism” and step­ping on the toes of other branches?

See also:

• The Volokh Conspiracy