The Supreme Court on Monday refused to consider a challenge to the National Security Agency’s global sweep of telephone and electronic communications — the first such test case to reach the Court since former NSA analyst Edward Snowdon began releasing publicly a pile of secret papers disclosing details of that surveillance. The Court made no comment as it turned aside an unusual request by an advocacy group, the Electronic Privacy Information Center (docket 13-58).

The EPIC plea was filed directly in the Court, without prior lower court action. The group requested that the Justices direct a judge of the secret Foreign Intelligence Surveillance Court to vacate an order he issued in April requiring a branch of the telephone giant Verizon to turn over to the government a vast array of data, including sweeps of U.S. telephone calls and Internet exchanges. The Court very rarely grants such a “writ of mandamus or prohibition.”

EPIC had contended that no other court was open to hear a challenge to orders of the FIS Court, so the Supreme Court should consider its case now. The Justice Department had answered that EPIC could attempt to pursue its case in lower courts first, although the government has attempted to thwart review of previous challenges.

In issuing a series of orders on Monday, the Court granted no new cases. It also did not refer any cases to the U.S. Solicitor General for the government’s reaction. It had granted review of two cases on Friday.

Among cases the Court declined to hear was a challenge to Alabama’s death sentencing scheme, filed by an inmate who was given such a sentence by the judge even though the jury had voted eight to four against that punishment. Justice Sonia Sotomayor, in a twelve-page dissent (most of which was joined by Justice Stephen G. Breyer), said that the Court should take a new look at Alabama’s capital punishment approach. It is now the only state where judges have imposed death sentences contrary to advisory verdicts recommended by juries. In a part of the opinion that Justice Breyer did not join, Justice Sotomayor argued that the Alabama approach may violate a string of modern Court rulings enhancing the role of juries in the sentencing process. She wrote as the Court denied review in Woodward v. Alabama (13-5380).

The Court’s denial of review in two other cases drew dissenting opinions or separate statements by Justice Samuel A. Alito, Jr. One was Rapelje v. McClellan (12-1480), a test of federal courts’ duty in habeas cases to defer to summary rulings by state courts in criminal cases. Justice Antonin Scalia joined the Alito dissent in that case. Justice Alito spoke only for himself in a separate opinion commenting on the denial of review of Martin v. Blessing (13-169), involving a federal judge in New York City, Harold Baer, Jr. Judge Baer, Alito protested, requires that lawyers representing those who sue together in a class action to reflect the race and gender makeup of members of the class.

Recommended Citation: Lyle Denniston, NSA spying challenge turned aside, SCOTUSblog (Nov. 18, 2013, 9:45 AM), https://www.scotusblog.com/2013/11/nsa-spying-challenge-turned-aside/