Who Invited Federal Judges to the Dance?

Judge Leon: defender of Constitutional rights

The Best Little Whorehouse in Texas opened on Broadway at the 46th Street Theatre on June 19, 1978 and ran 1,584 performances. I missed the Broadway run but loved the movie, especially when Charles Durning, who played the governor of Texas, sang this:

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The President and Congress should have adopted the song, “Dance a Little Sidestep,” as their theme for 2013, especially when it came to revelations that the NSA spies not only on foreign terrorists and our allies, but every American citizen who owns a phone or a computer. Despite relentless coverage by the media, the administration and Congressional leaders managed to dance their way around the public outcry by offering denials, rationalizations, studies and recommendations, and promises. All the while the NSA blithely goes on eavesdroping on all of us with little or no changes to the program.

Judge Leon: defender of Constitutional rights
Judge Leon: defender of Constitutional rights

But look out, sidesteppers: the federal judiciary has crashed your party. This December, Judge Richard Leon, in Washington, DC, ruled that the NSA’s mass collection of telephone metadata was “almost Orwellian” and “probably unconstitutional.” A conflict of opinions was created a week later when another federal Judge, William H. Pauley, III, of New York, sided with the NSA, declaring “whether that program should be conducted is for the other two coordinate branches of Government to decide.” For the ordinary citizen who doesn’t like the idea of Big Brother invading his or her bedroom, the change of venue to the federal judiciary is a glimmer of light in an otherwise dark future. The administration has already appealed Judge Leon’s decision, and given the different ruling out of New York, it seems likely that in the next year or so the NSA’s spying program will reach the U.S. Supreme Court. I, for one, like the “people’s” chance there. The Roberts Court has been quite vigilant in defending the Fourth Amendment prohibition against unreasonable search and seizure, although many scholars differ with me on this.

Meanwhile, the wheels of surveillance, espionage, and wiretapping keep spinning at the NSA. Those Pollyannas who hoped President Obama might rein it in must surely be disheartened by how intensely the Justice Department continues defending the existing program. The Administration also vehemently opposes any sort of forgiveness for whistleblower Edward Snowden, apparently deaf to the growing public debate. Review panels, studies and recommendations may look good on paper, but Obama has clearly decided to dance with the girl that his predecessor, George W. Bush, brought to the party.

The federal judiciary didn’t stop with the NSA, but crashed other political dances as well. A federal judge in Orlando, Mary Stenson Scriven — a George W. Bush appointee — found the Florida law requiring welfare recipients to be drug-tested to be unconstitutional. She wrote: “…there is no set of circumstances under which the warrantless, suspicionless drug testing at issue could be constitutionally applied.” Meantime, another federal judge, Robert J. Shelby, found Utah’s ban on gay marriage unconstitutional, concluding: “The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason.” (The Supreme Court has since issued a stay on same-sex marriage in Utah — after some 1,000 couples exercised their right to do so.)

The ability of federal courts to hold the executive branch in check is critical when it comes to protecting our privacy and individual rights. Only time will tell which of these decisions will withstand appeal, but the mere fact that some courts occasionally “crash the party” will hopefully slow down those in power who tend to think they can ignore the Constitution.

Wherever you stand on the issue itself, you have to admire the citizens of Colorado and their willingness to no longer sidestep the hypocrisy of our laws governing marijuana versus tobacco and alcohol. On Jan. 1, Colorado became the first state in the U.S. to allow marijuana to be purchased by adults for recreational use. Washington state is next. Colorado projects retail marijuana sales to yield $67 million in tax revenue in 2014. Colorado’s dance with ending marijuana prohibition is one worth watching and, if successful, may lead to other dances by citizens who are tired of Congress and the Obama administration sidestepping issues they care about. And that’s no toke.