The Supreme Court decided two more cases today, one unanimously, the other anything but so.

Yesterday, in United States v. Zubaydah, the Court upheld the government’s assertion of the state secrets privilege, rejecting an al Qaeda terrorist leader’s discovery request for information concerning his torture by the CIA. The Court continued its interest in the privilege in today’s unanimous opinion, authored by Justice Alito, in Federal Bureau of Investigation v. Fazaga.

The opinion assesses the relationship between the long-standing “state secrets” privilege and a provision of the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U. S. C. §1801 et seq., that provides a procedure under which a trial-level court or other authority may consider the legality of electronic surveillance conducted under FISA and may thereafter order specified forms of relief. The case originated with a lawsuit by three Muslims who claim that the FBI conducted illegal surveillance against them under FISA on the basis of their religion. The government countered that disclosure of the information that would be required to evaluate such a claim would threaten national security, and so asserted the state secrets privilege. Reversing the Ninth Circuit, the Supreme Court held that FISA did not displace the privilege, and thus remanded the case.

In so doing, the Court made it clear that it was only addressing the narrow question of whether FISA §1806(f) displaces the state secrets privilege. The Court declined to state how the statute should be interpreted or whether the government’s evidence is privileged. In sum, this was a case applying conventional textual interpretive methods, avoiding wading into the specific application, or not, of the privilege, and so commanded easy unanimity.

That hardly was the case with United States v. Tsarnaev, a 6-3 opinion authored by Justice Thomas and dissented from by the three jurisprudential liberals.

It is well remembered that, on April 15, 2013, Dzhokhar and Tamerlan Tsarnaev detonated two pressure-cooker nail bombs near the finish line of the Boston Marathon, killing three and wounding hundreds of racers and spectators. Three days later, the brothers murdered a campus police officer, carjacked an automobile, and fired on police who gave chase. The fleeing Dzhokhar inadvertently killed Tamerlan by running him over. Dzhokhar ultimately was found guilty by a jury of 30 federal crimes and it recommended the death penalty for six of them. The district court accordingly sentenced Dzhokhar to death, a sentence that was vacated by the First Circuit. The Supreme Court now has reversed and ordered the verdict reinstated. Dzhokhar Tsarnaev argues that the trial court erred in two regards: failing more specifically to question the jury panel about the effect of pretrial publicity and failing to allow testimony concerning the unsolved murder of three drug dealers allegedly led by Tamerlan and participated in by Dzhokhar. Dzhokhar wanted to present this information in the sentencing phase of the case to show that he was dominated by his brother and that that was an ameliorating factor that militated against capital punishment.

Six Justices agreed that the district court properly excluded the testimony sought by the respondent, and three hypothesized that the proffered information should have been admitted. One might conjecture that this division reflects the differing views of the Justices as to the gravity of capital punishment, but there also is a clear underlying issue that will be manifest in future cases, i.e., the extent to which, if at all, the Supreme Court constitutionally can, or should, exercise “supervisory power” over the lower courts. Justice Barrett, joined by Justice Gorsuch, in a separate concurring opinion, suggests skepticism that courts of appeals possess such power under Article III in the first place. She concedes that the Supreme Court has “squarely asserted supervisory power to regulate procedure in lower federal courts,” but doubts that there is any constitutional authority for doing so. Justice Thomas has raised a similar concern in the past. In this case, the Court has approved the exercise of discretion by the trial court, but it is not unlikely that the issue of the Supreme Court’s role in dealing with procedural matters will come up again.

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