Last week, the United States Supreme Court heard arguments in a wiretapping case that could affect untold numbers of Americans for years to come. Human rights advocates, journalists and attorneys concerned with the rights of those forced to mount a criminal defense or civil defense based on potentially illegal wiretapping evidence are seeking confirmation that they have standing to sue those who set up the wiretaps.

Specifically, the case concerns a federal law that allows the interception of communications between Americans and foreigners. There is a chance that the Court will dismiss the suit for lack of standing, in which case the law might not be open to challenge in the future. Either way, the decision in this case could affect every American affected by this kind of wiretapping.

It is possible that journalists, attorneys, the accused and human rights advocates could be held to different standards in terms of standing. That is, if anyone is allowed standing with regard to this issue.

Thankfully, the idea that no one might have standing to challenge this law drew criticisms from some justices; specifically Justice Sonia Sotomayor. While individuals must have standing to challenge a law, the idea that no one could potentially challenge a law conflicts with foundational principles advanced by the Supreme Court since its beginnings.

Nevertheless, Justice Antonin Scalia advanced the idea that some laws and regulations may exist outside the scope of judicial review. This concept is what most squarely places the wiretapping law in jeopardy. If several other justices adopt Justice Scalia’s line of thinking, it could mean that this potentially unconstitutional law will go unchallenged.

Source: New York Times, “Challenge to Wiretaps is Heard by Justices,” Adam Liptak, Oct. 29, 2012

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