The first of two parallel challenges to the NSA's cell phone metadata gathering program reached a federal appeals court this week, and if the judges' comments are any indication, the Second Circuit may be leaning toward reversing a district court's ruling in favor of the agency.
U.S. District Judge William Pauley ruled in the NSA's favor last December, accepting the government's proffered evidence that the program had helped anti-terrorism efforts and holding that he was bound by decades-old Supreme Court precedent. Pauley's ruling came shortly after a district court judge in Washington, D.C., held the exact opposite -- that the precedent was no longer valid and that the Orwellian program was unconstitutional.
While it was initially looking like the two cases were bound for a Supreme Court showdown, if both the Second and D.C. Circuits side with challengers to the program, it could impact the cases' chances of a certiorari grant.
2nd Circuit Skepticism
During oral arguments, all three judges on the Second Circuit panel seemed skeptical of the government's position, Reuters reports.
Judge Gerard Lynch said it was "hard for me to imagine" that Congress envisioned such a sweeping program when it passed the law that authorized the NSA's domestic cell phone surveillance. According to Reuters, judges Robert Sack and Vernon Broderick also made statements that reflected skepticism towards the government's broad interpretation of the statute.
Professor Orin Kerr, at Lawfare, notes that the judges focused on the statutory construction issue -- whether Section 215 authorizes bulk collection -- rather than the Fourth Amendment constitutional issue. He also makes an interesting point for those interested in a Supreme Court showdown: Section 215 sunsets on June 1, 2015, before the end of the Court's term.
C-SPAN has a recording of the oral arguments available online, if you wish to hear them yourself.
SCOTUS-Bound? Certainly Uncertain
While many were predicting cert. grants and Scalia quips after the two district court opinions, we advised readers to pump the breaks for a second, as it was possible that the appeals courts could both rule the same way. No split makes a cert. grant less likely, though not impossible.
Plus, with the sunsetting issue that Prof. Kerr points out, the case could be all but moot by the time the Court gets around to it.