There is a remarkable moment in the new Edward Snowden documentary Citizenfour that shows why we need judges to take their duty to uphold the Constitution seriously.
Citizenfour includes a clip of a 2011 hearing before the Ninth Circuit Court of Appeals, focusing on a number of suits involving dragnet communication surveillance by the NSA. During the hearing, U.S. Department of Justice attorney H. Thomas Byron III said that the court should dismiss the cases. Byron argued that national policies on electronic surveillance should be left exclusively in the hands of the political branches.
Basically, he's saying, "trust us." It is an invitation that all too many judges have accepted. Supreme Court history is littered with tragic examples of reflexive judicial deference to the government.
Take the infamous case of Korematsu v. U.S (1944). Three months after Japan attacked Pearl Harbor, President Roosevelt issued an executive order giving certain military commanders broad discretion to exclude people from areas of military significance. On the basis of this authority, General John DeWitt ordered the forcible removal of all Japanese Americans from "military areas" within selected western states. 120,000 Japanese Americans were sent to internment camps. Fred Korematsu, one of the internees, challenged the constitutionality of his treatment.
The Court upheld General DeWitt's order. Subsequent research has revealed that the government intentionally misled the Court by relying upon evidence that it knew to be unreliable. Korematsu's criminal conviction was vacated in 1983 on the basis of the government's deliberate decision to withhold relevant evidence.
In light of this history, it is encouraging to see U.S. Circuit Judge Harry Pregerson forcefully decline Byron's invitation: "The judiciary plays a role in our system. You're asking us to abdicate that role."
Judges who take their oaths seriously make things difficult for impatient executives. But the Constitution's structural limits on government power and its protections for individual rights will not enforce themselves. If the judiciary simply rubber-stamps assertions of power by the political branches, it ceases to be a co-equal branch--it becomes subordinate.
Whatever the morality or legality of his conduct, Snowden's revelations stunned the nation, and have given rise to a number of suits challenging the NSA's sweeping collection of telephone metadata. The Fourth Amendment stands as a bulwark against unreasonable searches and seizures, even in the name of national security. Americans overwhelmingly believe that we should not have to give up our freedom in order to be safe from terrorism. We need an engaged judiciary to secure that freedom.