Surveillance: NSA Warrantless Wiretapping

A Foolish Consistency is the Hobgoblin of Little Minds -- The Metadata Stay

By Paul Rosenzweig
Wednesday, December 18, 2013, 10:30 AM

Ralph Waldo Emerson once wrote:  “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."  His point was that only small-minded men refused to rethink their prior beliefs.  Or, put another way, he thought that today’s intuition could trump yesterday’s conclusions.

Clearly Judge Richard Leon, author of the recent NSA metadata opinion, does not have a little mind as he surely has no care for a small inconsistency, even if it is less than 20 pages old.  Let me, for this post, put on my appellate lawyer hat (one I wear only rarely these days), and ask you dear reader to consider: What do these two passages have in common?

the court must consider whether: (1) the party seeking the injunction has a substantial likelihood of success on the merits; (2) the party seeking the injunction will be irreparably injured if relief is withheld; (3) an injunction will not substantially harm other parties; and (4) an injunction would further the public interest. (CSX Transport v. Williams)


(1) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? Without such a substantial indication of probable success, there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review. (2) Has the petitioner shown that without such relief, it will be irreparably injured? . . . (3) Would the issuance of a stay substantially harm other parties interested in the proceedings? . . . (4) Where lies the public interest? . . . (WMATA v. Holiday Tours)

They seem … well, pretty much identical, or as near as one can make out given the limits of the English language.  And, indeed, in standard legal analysis they are treated as congruent: The first is a classic statement of the standard for granting a preliminary injunction.  The second is an equally classic statement of the standard for granting a stay of a lower court decision while an appeal is pending.  Most courts think they are more or less the same test.  Both of these quotes are from the DC Circuit (where Judge Leon works).

So that’s the conundrum in a nutshell.  In order to grant the plaintiff, Larry Klayman, a preliminary injunction Judge Leon must have concluded that Klayman was likely to succeed on the merits; that he would be irreparably injured without an injunction; that the injunction would not harm the NSA; and that it would further the public interest.

But then to have granted a stay of his own preliminary injunction while the NSA appealed the case he must have concluded that the NSA was likely to prevail in the appeal; that the NSA would be harmed if there was no stay; that Klayman, in contrast, would not be substantially harmed by the stay; and that the public interest would benefit from a stay’s issuance.

And that, of course, is why it is highly unusual (I want to say unique but that's an overstatement) for the same judge to both grant a preliminary injunction and then stay it.  More typically, the stay (if it comes at all) comes from the appellate court.  Emerson would have been proud of Judge Leon.