In a 5-4 decision today, the Supreme Court held that lawyers, journalists and human-rights workers whose work requires that they communicate with individuals abroad whose communications the federal government is likely to target under its broad new surveillance authority lack standing to challenge the statute granting the government that broad authority. The majority dismisses as the plaintiffs' fears of being monitored as speculative and articulates a stringent standard for getting into court: "threatened injury must be certainly impending to constitute injury in fact, and that allegations of possible future injury are not sufficient" (citations, internal quotation marks, and brackets omitted, and emphasis retained).
Citing cases from a variety of contexts, including environmental and public-health cases, the dissent rightly notes that the Court has never required certainty in order to find standing, and fears that the Supreme Court's decision today could have broad consequences: "Suppose that a federalcourt faced a claim by homeowners that (allegedly) unlawful dam-building practices created a high risk that theirhomes would be flooded. Would the court deny themstanding on the ground that the risk of flood was only 60, rather than 90, percent?"
The case is Clapper v. Amnesty International. (Disclosure: in a former capacity, I helped with the development of this case.)
