Since 2007 or so, though, the FISA Court has bulked up like A-Rod. The New York Times revealed that it has developed a complex case law interpreting the Surveillance Act, the Fourth Amendment, and its own jurisdiction. That case law, like the orders the court issues, like the briefs the government files, and like the legal opinions from which those briefs flow, of course, secret.

An entire shadow Constitution may be growing up, parsed by a court appointed by John Roberts. That secret growth seems more alarming because of reports that the chief justice's picks for the secret court have been skewed toward the Republican side of the bench.

The chief appoints the members of many specialized judicial panels. But the FISA Court has morphed into a very powerful institution. Perhaps it's time the change the way it is constituted.

Professor Stephen Vladeck, a separation of powers specialist who teaches at American University School of Law, argues that when FISA was passed it made sense to give the power of appointment to the Chief -- but that "what the FISA Court does has changed over time." The degree of programmatic responsibility it has taken on, he says, may be unprecedented.

For that reason, it may make sense to spread the responsibility for the makeup of the FISA courts. Vladeck suggests either creating a stand-alone specialized FISA Court, appointed by the President and confirmed by the Senate, or confining the present FISA Court to warrant approval, with a transfer of the more complex oversight of surveillance programs to panels of an existing court, perhaps one like the D.C. Circuit, which has experience in the intricacies of administrative law.

Should the chief keep the appointment power? Perhaps we can learn from recent history. In 1983, Chief Justice Warren Burger lobbied Congress to create a new national Court of Appeals, made up of already-confirmed sitting judges. In different proposals, the power of appointment would either be held by the chief alone, or by the Supreme Court as a whole.

Officials at the Reagan White House had little use for the idea. Appointment by the chief justice, or by the Court as a whole, one wrote, "constitutes an unprecedented infringement on the President's appointment power . . . ." Appointment by the chief alone would be likely to produce a solidly conservative court, but "liberal members of Congress, the courts, and the bar are likely to object." Even worse, if Democratic nominees were named, they might reverse the judgments of Reagan appointees on the lower courts.

"[T]he new court would be qualitatively different" than specialized panels appointed by the Chief, "and its members would have significantly great powers than regular circuit judges." If the project went forward, "we should scrupulously guard the President's appointment powers."

It was a shrewd assessment. The power to name judges to any important court is an important one, one that involves the president's power, the appearance of integrity and impartiality on the nation's courts, and the crucial issue of which judges get the last word on important questions.

The author of those memos was 28 years old when he opposed the new court. Today he is the Chief Justice of the United States.

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