In an op-ed in the New York Times, Ann Althouse argues:
TO end her opinion in American Civil Liberties Union v. National Security Agency — the case that enjoins President Bush's warrantless surveillance program — Judge Anna Diggs Taylor quoted Earl Warren (referring to him as "Justice Warren," not "Chief Justice Warren," as if she wanted to spotlight her carelessness): "It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the nation worthwhile."
As long as we're appreciating irony, let's consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations. . . .
Look at that juicy quotation from Judge Taylor's ruling: "There are no hereditary kings in America and no powers not created by the Constitution."
But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn't arguing that he's above the law. He's making an aggressive argument about the scope of his power under the law.
It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they've concluded that the program is legal. Why should the judicial view prevail over the president's?
This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge's word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law. . . .
This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge "must of necessity expound and interpret" in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.
If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge's word about what the law means over the word of the president? If the judge's own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.
There's irony for you.