Supreme Court Rejects Bid for Public Access to Rulings From Secretive FISA Court

The U.S. Supreme Court building is seen in Washington on Oct. 5, 2021. Kevin Dietsch/Getty Images

An attempt to gain access to decisions made by a secretive court has been denied by the Supreme Court.

The American Civil Liberties Union and a coalition of other groups had argued that the Constitution’s First Amendment requires the Foreign Intelligence Surveillance Court (FISC) to make available all “novel or significant interpretations” of law issued between Sept. 11, 2001, and mid-2015.

The court was required by Congress with the passage of the USA Freedom Act to release significant opinions for public dissemination, but the government has refused to release any such opinions issued prior to June 2015.

FISC, which was created by the Foreign Intelligence Surveillance Act, and its court of review both ruled against the civil liberties group. The courts asserted that they lacked the authority to consider granting the access sought. That set up a writ of certiorari, or an appeal, to the nation’s top court, which denied the writ on Nov. 1.

The majority didn’t detail the rationale for their decision, but Justices Neil Gorsuch and Sonia Sotomayor said they would have taken up the case.

“The government does not merely argue that the lower court rulings should be left undisturbed because they are correct. The government also presses the extraordinary claim that this Court is powerless to review the lower court decisions even if they are mistaken. On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts,” Gorsuch, a Trump appointee, wrote in a dissenting opinion (pdf), joined by Obama appointee Sotomayor.

Gorsuch said he feels that the case presents questions about the right of the public to access judicial proceedings “of grave national importance.”

“Maybe even more fundamentally, this case involves a governmental challenge to the power of this Court to review the work of Article III judges in a subordinate court. If these matters are not worthy of our time, what is?” he said.

Patrick Toomey, senior staff attorney at the American Civil Liberties Union’s National Security Project, also expressed disappointment regarding the high court’s decision.

“By turning away this case, the Supreme Court has failed to bring badly needed transparency to the surveillance court and to rulings that impact millions of Americans. Secret court decisions are corrosive in a democracy, especially when they so often hand the government the power to peer into our digital lives,” Toomey said in a statement.

The ruling highlights the need to end laws that enable the government to operate in secret, Sen. Ron Wyden (D-Ore.) added.