What happens when the empress doesn’t even pretend to wear clothes? In a way, that’s what happened when Judge Anna Diggs Taylor wrote her decision that NSA surveillance is unconstitutional.
Law professor Anne Althouse characterizes the ruling:
So often, we’ve heard complaints about ‘activist’ judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.
So perhaps the oddest thing about Judge Taylor’s opinion in the eavesdropping case is that she didn’t bother to come up with the verbiage that normally cushions us from these suspicions. Although the first half of the opinion, dealing with the state secrets doctrine and the first part of the standing doctrine, has the usual detail and structure one expects in a judicial opinion, the remainder of her text dispenses with the formalities.
One of the reasons the ACLU filed the lawsuit was that reporters supposedly feared it would prevent conversations with their sources. In addition to the constitutional issues, here’s a question: Would you prefer a reporter missed talking to a source or that the proper authorities missed tracking a terrorist plot?