Secret Law: Separation of Powers and the Public Right of Access to Foreign Intelligence Surveillance Court Jurisprudence

In 2021, the Supreme Court declined to take up a petition from the American Civil Liberties Union (ACLU) asserting a First Amendment right of access to significant opinions issued by the Foreign Intelligence Surveillance Court (FISC). Writing in dissent, Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, raised concerns about the implications of the Court’s denial for two major reasons—the First Amendment rights of Americans, and, more fundamentally, the separation of powers issues implicated by the government’s assertion that the Court lacked jurisdiction to review the work of a subordinate Article III court. This Note examines the arguments advanced by the ACLU in support of its petition, and those of the government in opposition. It proceeds by analyzing the broader implications of each set of assertions for the First Amendment rights of individuals, as well as the structural implications for the separation of powers, arguing that the Supreme Court should take up the issue raised by the ACLU’s petition. Additionally, this Note argues that in light of the recent reauthorization of Section 702, which tasks the FISC with programmatic oversight of sweeping government surveillance programs, it is particularly important that courts find a qualified public right of access to FISC opinions and orders.