Foreign Intelligence Surveillance Court (FISC)

Justices Gorsuch and Sotomayor Dissent From the Supreme Court’s Denial of Cert in ACLU v. United States

By Emily Dai
Monday, November 1, 2021, 12:48 PM

On Nov. 1, the Supreme Court denied a petition for a writ of certiorari in American Civil Liberties Union v. United States. The petition asked the Supreme Court to review the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review’s (FISCR’s) refusal to release court records to the American Civil Liberties Union (ACLU). The ACLU asked the Supreme Court to consider whether the First Amendment provides a qualified public right to access to the FISC’s significant opinions and whether the FISCR has the jurisdiction to consider an appeal from the denial of such a motion.

In an opinion dissenting from the court’s denial of cert, Justices Neil Gorsuch and Sonia Sotomayor said they would have granted review. “This case presents questions about the right of public access to Article III judicial proceedings of grave national importance,” Gorsuch wrote. “[T]his case involves a governmental challenge to the power of this Court to review the work of Article III judges in a subordinate court. If these matters are not worthy of our time, what is?”

You can read the dissent here and below: