Judge Posner on pragmatic judging in the NSA kurfluffle Judge Posner on pragmatic judging in the NSA kurfluffle

There was an interesting discussion at volokh.com about an article by Judge Posner in the New Republic suggesting pragmatism in judging. I originally made the following comments in that thread, and then moved them here.

The later posters brought something up that I posted about in other fora. The Supreme Court has a duty above and beyond that of Judge Posner in that they also have to maintain the power of their branch of government. The Judiciary has what some have called "soft power". They don't have soldiers, FBI agents, etc. Rather, their power is in their moral authority. In law school, I was taught (I think) that this really started with Marbury v. Madison, that they took upon themselves the power to decide what the Constitution means.

The Executive on the other hand has both "soft power" and "hard power". It has both moral authority and guns. So, to a very great extent, the Judiciary is dependant upon its "soft power" to make the Executive do what they wish it to.

Now, let us accept, arguendo, that FISA, by its language, would ban the NSA surveilance, or at least an important part of it. Let us also assume, arguendo, that the President is honest when he says that the reason that Americans are being surveiled by this program is that the NSA is trying to identify people being called by Al Qaeda. Also, lets accept, arguendo again, that the President believes that this is very important for national security and in preventing another 9/11. Finally, let's assume that a majority of Americans (and, in particular, a significant majority of Red State voters) back this.

So, what happens if the dispute (such as the pending ACLU lawsuit) gets to the Supreme Court? Do the Justices blindly interpret the laws and Constitution here, and let the chips fall as they may?

I submit that this is unlikely. Rather, I suggest that it is much more likely that they interpret the AUMF to effectively amend FISA to the extent that the NSA program is legal. Why? Because ruling against the President would jepardize their "soft power". Why? Because of what happens if the President calls their bluff (and a lot of people have suggested that it is foolish to play poker with this President). What happens if he refuses to terminate the NSA program? How are they going to enforce their decision against him? After all, he is the one for whom all the FBI agents, soldiers, et al. work. Not the Judicary. He is the one with the "hard power". Not them.

Can they afford to take the chance that he would defy them? I would suggest not. They can't take the chance that he would do that, because that would establish that they were not the final arbitors of what laws and the Constitution means. Maybe a bit like Marbury v. Madison in reverse.

One poster asked then what are the limits on a president's power to ignore the other branches of government. My answer is the same as that an 8th grade civic student would give - impeachment. Nixon ended up obeying the Supreme Court because of the real possibility that he would become the second president in history to be impeached (obviously, that honor ultimately fell to Mr. Clinton).

Here you have a situation where a majority of the people seem to support the President in the NSA surveilance. Plus, his party controls both houses of Congress. Absent more, the chances of President Bush being impeached for this are quite low.

I should add that Mr. Nixon forfeited a lot of his "soft power" (and moral authority) when his people burgled the DNC. That was personal and venal. Mr. Bush on the other hand can go to the American people and plausibly claim that he is protecting them from another 9/11 with this program. That arguably puts him in the position of having both all the "hard power" plus a surplus of "soft power" in any showdown with the Judicary.

The way this ties into Judge Posner's "pragmatism" is that the power dynamics between the different branches of government are likely to affect the place where the Justices start. With probably a majority of the people behind the President, and, more importantly, a vast majority of Red State voters behind him, I don't see the Justices calling his bluff. They can't afford to bet 200+ years of "soft power" on this.

That then gives them the implicit choice of either expanding FISA via the AUMF or finding for the President on his Article II powers. But that later would truly interject them into a Balance of Power dispute, and end up increasing the power of the Executive, vis a vis the Legislature. Something I think they would do to prevent betting their "soft power", but not preferable to finding the program legal on narrow statutory grounds.