On November 1, 2021, the Supreme Court denied a petition for a writ of certiorari in American Civil Liberties Union v. United States. In its petition, the American Civil Liberties Union (ACLU) sought the Supreme Court’s review of the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review’s (FISCR) decisions declining to release court records to the ACLU.

Beginning in 2013, the ACLU filed a series of motions with the FISC arguing that the First Amendment provides a qualified right of public access to its opinions. Both the FISC and the FISCR later rejected the ACLU’s request for records, asserting in turn that each court lacked the authority to consider the merits of the ACLU’s argument. In the case underlying this cert petition, FISC Judge Boasberg concluded that exercising jurisdiction over the ACLU’s motion would be inconsistent with an April 24, 2020 FISCR ruling on a prior ACLU motion seeking access to records, which held that the ACLU’s petition for review did not “fall[] within the class of cases carefully delineated by the [Foreign Intelligence Surveillance Act] as within [the FISCR’s appellate jurisdiction].” Per Judge Boasberg, the FISCR ruling established that Congress has not given either court the authority to review “freestanding” constitutional claims, nor has it granted entities like the ACLU statutory authorization to seek FISCR review.

On appeal to the Supreme Court, the government argued in response to the ACLU’s petition for review that the FISC and FISCR’s decisions were correct, and the Supreme Court did not have jurisdiction to review the lower courts’ rulings.

Justice Gorsuch, in an opinion joined by Justice Sotomayor, dissented from the Supreme Court’s decision to deny cert. “On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts,” Justice Gorsuch wrote, “this 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?”

As reflected in Justice Gorsuch’s dissent, the Supreme Court’s decision to deny the ACLU’s petition resurfaces long-standing questions about judicial oversight over the U.S. government’s surveillance programs.