SUPREME COURT OF THE UNITED STATES
JAMES R. CLAPPER, Jr., DIRECTOR OF NATIONAL
INTELLIGENCE, et al., PETITIONERS v.
INTERNATIONAL USA et al.
on writ of certiorari to the united states
court of appeals for the second circuit
[February 26, 2013]
Justice Breyer, with whom Justice Ginsburg,
Justice Sotomayor, and Justice Kagan join, dissenting.
The plaintiffs’ standing depends upon the
likelihood that the Government, acting under the authority of 50
U. S. C. §1881a (2006 ed., Supp. V), will harm them
by intercepting at least some of their private, foreign, telephone,
or e-mail conversations. In my view, this harm is not
“speculative.” Indeed it is as likely to take place as
are most future events that commonsense inference and ordinary
knowledge of human nature tell us will happen. This Court has often
found the occurrence of similar future events sufficiently certain
to support standing. I dissent from the Court’s contrary
Article III specifies that the “judicial
Power” of the United States extends only to actual
“Cases” and “Controversies.” §2. It
thereby helps to ensure that the legal questions presented to the
federal courts will not take the form of abstract intellectual
problems resolved in the “rarified atmosphere of a debating
society” but instead those questions will be presented
“in a concrete factual context conducive to a realistic
appreciation of the consequences of judicial action.”
Valley Forge Christian College
v. Americans United for
Separation of Church and State, Inc.
, 472 (1982) (purpose of Article III); Lujan
Defenders of Wildlife
, 504 U.S.
, 560 (1992) (similar); Babbitt
, 442 U.S.
, 297 (1979) (similar).
The Court has recognized that the precise
boundaries of the “case or controversy” requirement are
matters of “degree . . . not discernible by any precise
At the same time, the Court has developed
a subsidiary set of legal rules that help to determine when the
Constitution’s requirement is met. See Lujan
U. S., at 560–561; id.,
at 583 (Stevens, J.,
concurring in judgment). Thus, a plaintiff must have
“standing” to bring a legal claim. And a plaintiff has
that standing, the Court has said, only if the action or omission
that the plaintiff challenges has caused, or will cause, the
plaintiff to suffer an injury that is “concrete and
particularized,” “actual or imminent,” and
“redress[able] by a favorable decision.” Id.
560–561 (internal quotation marks omitted).
No one here denies that the Government’s
interception of a private telephone or e-mail conversation amounts
to an injury that is “concrete and particularized.”
Moreover, the plaintiffs, respondents here, seek as relief a
judgment declaring unconstitutional (and enjoining enforcement of)
a statutory provision authorizing those interceptions; and, such a
judgment would redress the injury by preventing it. Thus, the basic
question is whether the injury, i.e.,
the interception, is
“actual or imminent.”
Since the plaintiffs fear interceptions of a
kind authorized by §1881a, it is important to understand just
what kind of surveillance that section authorizes. Congress enacted
§1881a in 2008, as an amendment to the pre-existing Foreign
Intelligence Surveillance Act of 1978, 50 U. S. C.
§1801 et seq
. Before the amendment, the Act authorized
the Government (acting within the United States) to monitor private
electronic communications between the United States and a foreign
country if (1) the Government’s purpose was, in significant
part, to obtain foreign intelligence information (which includes
information concerning a “foreign power” or
“territory” related to our “national
defense” or “security” or the “conduct of
. . . foreign affairs”), (2) the Government’s
surveillance target was “a foreign power or an agent of a
foreign power,” and (3) the Government used surveillance
procedures designed to “minimize the acquisition and
retention, and prohibit the dissemination, of” any private
information acquired about Americans. §§1801(e), (h),
In addition the Government had to obtain the
approval of the Foreign Intelligence Surveillance Court. To do so,
it had to submit an application describing (1) each “specific
target,” (2) the “nature of the information
sought,” and (3) the “type of communications or
activities to be subjected to the surveillance.”
§1804(a). It had to certify that, in significant part, it
sought to obtain foreign intelligence information. Ibid.
had to demonstrate probable cause to believe that each specific
target was “a foreign power or an agent of a foreign
power.” §§1804(a), 1805(a). It also had to describe
instance-specific procedures to be used to minimize intrusions upon
Americans’ privacy (compliance with which the court
subsequently could assess). §§1804(a), 1805(d)(3).
The addition of §1881a in 2008 changed this
prior law in three important ways. First, it eliminated the
requirement that the Government describe to the court each specific
target and identify each facility at which its surveillance would
be directed, thus permitting surveillance on a programmatic, not
necessarily individualized, basis. §1881a(g). Second, it
eliminated the requirement that a target be a “foreign power
or an agent of a foreign power.” Ibid
. Third, it
diminished the court’s authority to insist upon, and
eliminated its authority to supervise, instance-specific
privacy-intrusion minimization procedures (though the Government
still must use court-approved general minimization procedures).
§1881a(e). Thus, using the authority of §1881a, the
Government can obtain court approval for its surveillance of
electronic communications between places within the United States
and targets in foreign territories by showing the court (1) that
“a sig-nificant purpose of the acquisition is to obtain
foreign intelligence information,” and (2) that it will use
general targeting and privacy-intrusion minimization procedures of
a kind that the court had previously approved. §1881a(g).
It is similarly important to understand the
kinds of communications in which the plaintiffs say they engage and
which they believe the Government will intercept. Plaintiff Scott
McKay, for example, says in an affidavit (1) that he is a lawyer;
(2) that he represented “Mr. Sami Omar Al-Hussayen, who was
acquitted in June 2004 on terrorism charges”; (3) that he
continues to represent “Mr. Al-Hussayen, who, in addition to
facing criminal charges after September 11, was named as a
defendant in several civil cases”; (4) that he represents
Khalid Sheik Mohammed, a detainee, “before the Military
Commissions at Guantánamo Bay, Cuba”; (5) that in
representing these clients he “communicate[s] by telephone
and email with people outside the United States, including Mr.
Al-Hussayen himself,” “experts, investigators,
attorneys, family members . . . and others who are located
abroad”; and (6) that prior to 2008 “the U. S.
government had intercepted some 10,000 telephone calls and 20,000
email communications involving [his client] Al-Hussayen.”
App. to Pet. for Cert. 369a–371a.
Another plaintiff, Sylvia Royce, says in her
affidavit (1) that she is an attorney; (2) that she
“represent[s] Mohammedou Ould Salahi, a prisoner who has been
held at Guantánamo Bay as an enemy combatant”; (3)
that, “[i]n connection with [her] representation of Mr.
Salahi, [she] receive[s] calls from time to time from Mr.
Salahi’s brother, . . . a university student in
Germany”; and (4) that she has been told that the Government
has threatened Salahi “that his family members would be
arrested and mis-treated if he did not cooperate.”
., at 349a–351a.
The plaintiffs have noted that McKay no longer
represents Mohammed and Royce no longer represents Ould Salahi.
Brief for Respondents 15, n. 11. But these changes are irrelevant,
for we assess standing as of the time a suit is filed, see
v. Federal Election Comm’n
, 554 U.S.
, 734 (2008), and in any event McKay himself continues to
represent Al Hussayen, his partner now represents Mohammed, and
Royce continues to represent individuals held in the custody of the
U. S. military overseas.
A third plaintiff, Joanne Mariner, says in her
affidavit (1) that she is a human rights researcher, (2) that
“some of the work [she] do[es] involves trying to track down
people who were rendered by the CIA to countries in which they were
tortured”; (3) that many of those people “the CIA has
said are (or were) associated with terrorist organizations”;
and (4) that, to do this research, she “communicate[s] by
telephone and e-mail with . . . former detainees, lawyers
for detainees, relatives of detainees, political activists,
journalists, and fixers” “all over the world, including
in Jordan, Egypt, Pakistan, Afghanistan, [and] the Gaza
Strip.” App. to Pet. for Cert. 343a–344a.
Other plaintiffs, including lawyers,
journalists, and human rights researchers, say in affidavits (1)
that they have jobs that require them to gather information from
foreigners located abroad; (2) that they regularly communicate
, by telephone or e-mail) with
foreigners located abroad; and (3) that in these communications
they exchange “foreign intelligence information” as the
Act defines it. Id
., at 334a–375a.
Several considerations, based upon the record
along with commonsense inferences, convince me that there is a very
high likelihood that Government, acting under the authority of
, will intercept at least some of the communications
just described. First, the plaintiffs have engaged, and continue to
engage, in electronic communications of a kind that the 2008
amendment, but not the prior Act, authorizes the Government to
intercept. These communications include discussions with family
members of those detained at Guantanamo, friends and acquaintances
of those persons, and investigators, experts and others with
knowledge of circumstances related to terrorist activities. These
persons are foreigners located outside the United States. They are
not “foreign power[s]” or “agent[s] of
. . . foreign power[s].” And the plaintiffs state
that they exchange with these persons “foreign intelligence
information,” defined to include information that
“relates to” “international terrorism” and
“the national defense or the security of the United
States.” See 50 U. S. C. §1801 (2006 ed. and
Supp. V); see, e.g.,
App. to Pet. for Cert. 342a, 366a,
Second, the plaintiffs have a strong
to engage in, and the Government has a strong
to listen to, conversations of the kind described. A
lawyer representing a client normally seeks to learn the
circumstances surrounding the crime (or the civil wrong) of which
the client is accused. A fair reading of the affidavit of Scott
McKay, for example, taken together with elementary considerations
of a lawyer’s obligation to his client, indicates that McKay
will engage in conversations that concern what suspected foreign
terrorists, such as his client, have done; in conversations that
concern his clients’ families, colleagues, and contacts; in
conversations that concern what those persons (or those connected
to them) have said and done, at least in relation to terrorist
activities; in conversations that concern the political, social,
and commercial environments in which the suspected terrorists have
lived and worked; and so forth. See, e.g., id
373a–374a. Journalists and human rights workers have strong
similar motives to conduct conversations of this kind. See,
., at 342a (Declaration of Joanne Mariner,
stating that “some of the information [she] exchange[s] by
telephone and e-mail relates to terrorism and counterterrorism, and
much of the information relates to the foreign affairs of the
At the same time, the Government has a strong
motive to conduct surveillance of conversations that contain
material of this kind. The Government, after all, seeks to learn as
much as it can reasonably learn about suspected terrorists (such as
those detained at Guantanamo), as well as about their contacts and
activities, along with those of friends and family members. See
Executive Office of the President, Office of Management and Budget,
Statement of Administration Policy on S. 2248, p. 4 (Dec. 17, 2007)
(“Part of the value of the [new authority] is to enable the
Intelligence Community to collect expeditiously the communications
of terrorists in foreign countries who may contact an associate in
the United States”). And the Government is motivated to do
so, not simply by the desire to help convict those whom the
Government believes guilty, but also by the critical, overriding
need to protect America from terrorism. See id.,
(“Protection of the American people and American interests at
home and abroad requires access to timely, accurate, and insightful
intelligence on the capabilities, intentions, and activities of . .
Third, the Government’s past
shows that it has sought, and hence will in all
likelihood continue to seek, information about alleged terrorists
and detainees through means that include surveillance of electronic
communications. As just pointed out, plaintiff Scott McKay states
that the Government (under the authority of the pre-2008 law)
“intercepted some 10,000 telephone calls and 20,000 email
communications involving [his client] Mr. Al-Hussayen.” App.
to Pet. for Cert. 370a.
Fourth, the Government has the capacity
to conduct electronic surveillance of the kind at issue. To some
degree this capacity rests upon technology available to the
Government. See 1 D. Kris & J. Wilson, National Security
Investigations & Prosecutions §16:6, p. 562 (2d ed. 2012)
(“NSA’s technological abilities are legendary”);
§16:12, at 572–577 (describing the National
Security Agency’s capacity to monitor “very
broad facilities” such as international switches). See,
, Lichtblau & Risen, Spy Agency Mined Vast Data
Trove, Officials Report, N. Y. Times, Dec. 24, 2005, p. A1
(describing capacity to trace and to analyze large volumes of
communications into and out of the United States); Lichtblau &
Shane, Bush is Pressed Over New Report on Surveillance, N. Y.
Times, May 12, 2006, p. A1 (reporting capacity to obtain access to
records of many, if not most, telephone calls made in the United
States); Priest & Arkin, A Hidden World, Growing Beyond
Control, Washington Post, July 19, 2010, p. A1 (reporting that
every day, collection systems at the National Security Agency
intercept and store 1.7 billion e-mails, telephone calls and other
types of communications). Cf. Statement of Administration Policy on
S. 2248, supra
, at 3 (rejecting a provision of the Senate
bill that would require intelligence analysts to count “the
number of persons located in the United States whose communications
were reviewed” as “impossible to implement”
(internal quotation marks omitted)). This capacity also includes
the Government’s authority to obtain the kind of information
here at issue from private carriers such as AT&T and Verizon.
See 50 U. S. C. §1881a(h). We are further told by
that the Government is expanding that capacity. See
Brief for Electronic Privacy Information Center et al. as
22–23 (National Security Agency will be able to conduct
surveillance of most electronic communications between domestic and
Of course, to exercise this capacity the
Government must have intelligence court authorization. But the
Government rarely files requests that fail to meet the statu-tory
criteria. See Letter from Ronald Weich, Assistant Attorney General,
to Joseph R. Biden, Jr., 1 (Apr. 30, 2012) (In 2011, of the 1,676
applications to the intelligence court, two were withdrawn by the
Government, and the remaining 1,674 were approved, 30 with some
mod-ification), online at http://www.justice.gov/nsd/foia/
foia_library/2011fisa-ltr.pdf. (as visited Feb. 22, 2013, and
available in Clerk of Court’s case file). As the intelligence
court itself has stated, its review under §1881a is
“nar-rowly circumscribed.” In re Proceedings
Required by §702(i) of the FISA Amendments Act of 2008, No.
Misc. 08–01 (Aug. 17, 2008), p. 3. There is no reason to
believe that the communications described would all fail to meet
the conditions necessary for approval. Moreover, compared with
prior law, §1881a simplifies and thus expedites the approval
process, making it more likely that the Government will use
§1881a to obtain the necessary approval.
The upshot is that (1) similarity of content,
(2) strong motives, (3) prior behavior, and (4) capacity all point
to a very strong likelihood that the Government will intercept at
least some of the plaintiffs’ communications, including some
that the 2008 amendment, §1881a, but not the pre-2008 Act,
authorizes the Government to intercept.
At the same time, nothing suggests the presence
of some special factor here that might support a contrary
conclusion. The Government does not deny that it has both the
motive and the capacity to listen to communications of the kind
described by plaintiffs. Nor does it describe any system for
avoiding the interception of an electronic communication that
happens to include a party who is an American lawyer, journalist,
or human rights worker. One can, of course, always imagine some
special circumstance that negates a virtual likelihood, no matter
how strong. But the same is true about most, if not all, ordinary
inferences about future events. Perhaps, despite pouring rain, the
streets will remain dry (due to the presence of a special
chemical). But ordinarily a party that seeks to defeat a strong
natural inference must bear the burden of showing that some such
special circumstance exists. And no one has suggested any such
special circumstance here.
Consequently, we need only assume that the
Government is doing its job (to find out about, and combat,
terrorism) in order to conclude that there is a high probability
that the Government will intercept at least some elec-tronic
communication to which at least some of the plaintiffs are parties.
The majority is wrong when it describes the harm threatened
plaintiffs as “speculative.”
The majority more plausibly says that the
plaintiffs have failed to show that the threatened harm is
, at 10
(internal quotation marks omitted). But, as the majority appears to
concede, see ante,
at 15–16, and n. 5,
is not, and never has been, the touchstone of
standing. The future is inherently uncertain. Yet federal courts
frequently entertain actions for injunctions and for declaratory
relief aimed at preventing future activities that are reasonably
likely or highly likely, but not absolutely certain, to take place.
And that degree of certainty is all that is needed to support
The Court’s use of the term
“certainly impending” is not to the contrary. Sometimes
the Court has used the phrase “certainly impending” as
if the phrase described a sufficient,
rather than a
condition for jurisdiction. See
v. West Virginia
, 262 U.S.
, 593 (1923) (“If the injury is certainly impending
that is enough”). See also Babbitt
, 442 U. S., at
298 (same). On other occasions, it has used the phrase as if it
, not whether
, an alleged injury would
occur. Thus, in Lujan
, 504 U. S., at 564, n. 2,
the Court considered a threatened future injury that consisted of
harm that plaintiffs would suffer when they “soon”
visited a gov-ernment project area that (they claimed) would suffer
environmental damage. The Court wrote that a “mere
pro-fession of an intent, some day, to return” to the project
area did not show the harm was “imminent
“soon” might mean nothing more than “in this
at 564–565, n. 2 (internal
quotation marks omitted). Similarly, in McConnell
Federal Election Comm’n
, 540 U.S.
(2003), the Court denied standing because the
Senator’s future injury (stemming from a campaign finance
law) would not affect him until his reelection. That fact, the
Court said, made the injury “too remote temporally to satisfy
Article III standing.” Id.,
On still other occasions, recognizing that
“ ‘ imminence’ is concededly a somewhat
elastic concept,” Lujan
, at 565,
n. 2, the Court has referred to, or used (sometimes along with
“certainly impending”) other phrases such as
“reasonable probability” that suggest less than
absolute, or literal certainty. See Babbitt
at 298 (plaintiff “must demonstrate a realistic danger
of sustaining a direct injury” (emphasis added)); Friends
of the Earth, Inc.
v. Laidlaw Environmental Services (TOC),
, 528 U.S.
, 190 (2000) (“[I]t is the plaintiff’s burden to
establish standing by demonstrating that . . . the
defendant’s allegedly wrongful behavior will likely occur or
continue”). See also Monsanto Co.
v. Geertson Seed
, 561 U. S. ___, ___ (2010) (slip op., at 11)
(“ ‘ “reasonable
probability” ’ ” and “substantial
, 554 U. S., at 734
(“realistic and impending threat of direct injury”);
v. Genentech, Inc.
, 549 U.S.
, 129 (2007) (“genuine threat of enforcement”);
Department of Commerce
v. United States House of
, 525 U.S.
, 333 (1999) (“substantially likely” (internal
quotation marks omitted)); Clinton
v. City of New
, 524 U.S.
, 432 (1998) (“sufficient likelihood of economic
v. San Jose
, 485 U.S.
, 8 (1988) (“realistic danger” (internal quotation
marks omitted)); Blum
, 457 U.S.
, 1001 (1982) (“quite realistic” threat);
, 447 U.S.
, 367–368 (1980) (“likely”);
, 424 U.S.
, 74 (1976) (per curiam
probability”). Taken together the case law uses the word
“certainly” as if it emphasizes, rather than literally
defines, the immediately following term
More important, the Court’s holdings in
standing cases show that standing exists here. The Court has often
standing where the occurrence of the relevant injury
was far less
certain than here. Consider a few, fairly
typical, cases. Consider Pennell
. A city
ordinance forbade landlords to raise the rent charged to a tenant
by more than 8 percent where doing so would work an unreasonably
severe hardship on that tenant. Id
., at 4–5. A group
of landlords sought a judgment declaring the ordinance
unconstitutional. The Court held that, to have standing, the
landlords had to demonstrate a “ ‘realistic
danger of sustaining a direct injury
as a result of the
statute’s operation.’ ” Id
., at 8
(emphasis added). It found that the landlords had done so by
showing a likelihood of enforcement and a
, that the ordinance would
make the landlords charge lower rents—even though the
landlords had not shown (1) that they intended to raise the
relevant rents to the point of causing unreasonably severe
hardship; (2) that the tenants would challenge those increases; or
(3) that the city’s hearing examiners and arbitrators would
find against the landlords. Here, even more so than in
, there is a “realistic danger
that the relevant harm will occur.
Or, consider Blum, supra.
A group of
nursing home residents receiving Medicaid benefits challenged the
constitutionality (on procedural grounds) of a regulation that
permitted their nursing home to transfer them to a less desirable
., at 999–1000. Although a Medicaid committee
had recommended transfers, Medicaid-initiated transfer had been
enjoined and the nursing home itself had not threatened to transfer
the plaintiffs. But the Court found “standing” because
“the threat of transfers” was “not
‘imaginary or speculative’ ” but
“quite realistic,” hence “sufficiently
., at 1000–1001 (quoting
, 401 U.S.
, 42 (1971)). The plaintiffs’ injury here is not
imaginary or speculative, but “quite realistic.”
Or, consider Davis
plaintiff, a candidate for the United States House of
Representatives, self-financed his campaigns. He challenged the
constitutionality of an election law that relaxed the limits on an
opponent’s contributions when a self-financed
candidate’s spending itself exceeded certain other limits.
His opponent, in fact, had decided not to take advantage of the
increased contribution limits that the statute would have allowed.
., at 734. But the Court nonetheless found standing
because there was a “realistic and impending threat,”
not a certainty, that the candidate’s opponent would do so at
the time the plaintiff filed the complaint. Id
734–735. The threat facing the plaintiffs here is as
“realistic and impending.”
Or, consider MedImmune
plaintiff, a patent licensee, sought a declaratory judgment that
the patent was invalid. But, the plaintiff did not face an imminent
threat of suit because it continued making royalty payments to the
patent holder. In explaining why the plaintiff had standing, we (1)
assumed that if the plaintiff stopped making royalty payments it
would have standing (despite the fact that the patent holder might
not bring suit), (2) rejected the Federal Circuit’s
“reasonable ap-prehension of imminent
requirement, and (3) in-stead suggested that a “genuine
threat of enforcement” was likely sufficient. Id
128, 129, 132, n. 11 (internal quotation marks omitted). A
“genuine threat” is present here.
Moreover, courts have often found
injuries sufficient to support standing. In
Duke Power Co.
v. Carolina Environmental Study Group,
, 438 U.S.
for example, the plaintiffs, a group of
individuals living near a proposed nuclear powerplant, challenged
the constitutionality of the Price-Anderson Act, a statute that
limited the plant’s liability in the case of a nuclear
accident. The plaintiffs said that, without the Act, the defendants
would not build a nuclear plant. And the building of the plant
would harm them, in part, by emitting “non-natural radiation
into [their] environment.” Id
., at 74. The Court found
standing in part due to “our generalized concern about
exposure to radiation and the apprehension flowing from the
about the health and genetic consequences of
even small emissions.” Ibid
. (emphasis added). See
also Monsanto Co.
, at ___ (slip op., at
11–12) (“A substantial risk
of gene flow injures
respondents in several ways” (emphasis added)).
See also lower court cases, such as Mountain
States Legal Foundation
92 F.3d 1228
, 1234–1235 (CADC 1996) (plaintiffs attack
Government decision to limit timber harvesting; standing based upon
of wildfires); Natural Resources Defense
464 F.3d 1
, 7 (CADC 2006) (plaintiffs attack Government
decision deregulating methyl bromide; standing based upon increased
of developing skin cancer); Constellation
Energy Commodities Group, Inc.
, 457 F.3d 14, 20
(CADC 2006) (standing based on increased risk
inherent in the reduction of collateral securing a debt of
uncertain amount); Sutton
v. St. Jude Medical S. C.,
419 F.3d 568
, 570–575 (CA6 2005) (standing based on
of harm caused by implantation of defective
medical device); Johnson
v. Allsteel, Inc.
259 F.3d 885
, 888–891 (CA7 2001) (stand-ing based on
that Employee Retirement Income Security Act
beneficiary will not be covered due to increased amount of
discretion given to ERISA administrator).
How could the law be otherwise? Suppose that a
federal court faced a claim by homeowners that (allegedly) unlawful
dam-building practices created a high risk that their homes would
be flooded. Would the court deny them standing on the ground that
the risk of flood was only 60, rather than 90, percent?
Would federal courts deny standing to a
plaintiff in a diversity action who claims an anticipatory breach
of contract where the future breach depends on probabilities? The
defendant, say, has threatened to load wheat onto a ship bound for
India despite a promise to send the wheat to the United States. No
one can know for certain that this will happen. Perhaps the
defendant will change his mind; perhaps the ship will turn and head
for the United States. Yet, despite the uncertainty, the
Constitution does not prohibit a federal court from hearing such a
claim. See 23 R. Lord, Williston on Contracts §63:35 (4th ed.
2002) (plaintiff may bring an anticipatory breach suit even though
the defendant’s promise is one to perform in the future, it
has not yet been broken, and defendant may still retract the
repudiation). E.g., Wisconsin Power & Light Co.
Century Indemnity Co.
130 F.3d 787
, 792–793 (CA7 1997) (plaintiff could sue
insurer that disclaimed liability for all costs that would be
incurred in the future if
environmental agencies required
v. International Ins. Co.
354 F.3d 568
, 598–601 (CA6 2004) (similar).
Would federal courts deny standing to a
plaintiff who seeks to enjoin as a nuisance the building of a
nearby pond which, the plaintiff believes, will very likely, but
not inevitably, overflow his land? See 42 Am. Jur. 2d Injunctions
§§2, 5 (2010) (noting that an injunction is ordinarily
preventive in character and restrains actions that have not yet
been taken, but threaten injury). E.g.
, Central Delta
v. United States
306 F.3d 938
, 947–950 (CA9 2002) (standing to seek
injunction where method of operating dam was highly likely to
severely hamper plaintiffs’ ability to grow crops);
Consolidated Companies, Inc.
v. Union Pacific
, 499 F.3d 382, 386 (CA5 2007) (standing to seek
injunction requiring cleanup of land adjacent to plaintiff’s
tract because of threat that contaminants might migrate to
Neither do ordinary declaratory judgment actions
always involve the degree of certainty upon which the Court insists
here. See, e.g.
, Maryland Casualty Co.
Coal & Oil Co.
, 312 U.S.
, 273 (1941) (insurance company could seek declaration that
it need not pay claim against insured automobile driver who was in
an accident even though the driver had not yet been found liable
for the accident); Aetna Life Ins. Co.
, 239–244 (1937) (insurance company could seek
declaration that it need not pay plaintiff for disability although
plaintiff had not yet sought disability payments). See also,
, Associated Indemnity Corp.
961 F.2d 32, 35–36 (CA2 1992) (insured
could seek declaration that insurance company must pay liability
even before insured found liable).
In some standing cases, the Court has found
that a reasonable probability of future
accompanied with present
injury that takes the form of
reasonable efforts to mitigate the threatened effects of the future
injury or to prevent it from occurring. Thus, in Monsanto
, 561 U. S., at ___ (slip op., at 11–14)
plaintiffs, a group of conventional alfalfa growers, challenged an
agency decision to deregulate genetically engineered alfalfa. They
claimed that deregulation would harm them because their neighbors
would plant the genetically engineered seed, bees would obtain
pollen from the neighbors’ plants, and the bees would then
(harmfully) contaminate their own conventional alfalfa with the
genetically modified gene. The lower courts had found a
“reasonable probability” that this injury would occur.
(internal quotation marks omitted).
Without expressing views about that probability,
we found standing because the plaintiffs would suffer present harm
by trying to combat the threat. Ibid
. The plaintiffs, for
example, “would have to conduct testing to find out whether
and to what extent their crops have been contaminated.”
., at ___ (slip op., at 12). And they would have to take
“measures to minimize the likelihood of potential
contamination and to ensure an adequate supply of
non-genetically-engineered alfalfa.” Ibid
. We held
that these “harms, which [the plaintiffs] will suffer even if
their crops are not actually infected with” the genetically
modified gene, “are sufficiently concrete to satisfy the
injury-in-fact prong of the constitutional standing
., at ___ (slip op., at 13).
Virtually identical circumstances are present
here. Plaintiff McKay, for example, points out that, when he
communicates abroad about, or in the interests of, a client
, a client accused of terrorism), he must “make
an assessment” whether his “client’s interests
would be compromised” should the Government “acquire
the communications.” App. to Pet. for Cert. 375a. If so, he
must either forgo the communication or travel abroad. Id
at 371a–372a (“I have had to take measures to protect
the confidentiality of information that I believe is particularly
sensitive,” including “travel that is both
time-consuming and expensive”).
Since travel is expensive, since forgoing
communication can compromise the client’s interests, since
McKay’s assessment itself takes time and effort, this case
does not differ significantly from Monsanto.
And that is so
whether we consider the plaintiffs’ present necessary
expenditure of time and effort as a separate concrete,
particularized, imminent harm, or consider it as additional
evidence that the future harm (an interception) is likely to occur.
See also Friends of the Earth, Inc.
, 528 U. S., at
183–184 (holding that plaintiffs who curtailed their
recreational activities on a river due to reasonable concerns about
the effect of pollutant discharges into that river had standing);
, 481 U.S.
, 475 (1987) (stating that “the need to take . . .
affirmative steps to avoid the risk of harm . . . constitutes a
The majority cannot find support in cases that
use the words “certainly impending” to deny
standing. While I do not claim to have read every standing case, I
have examined quite a few, and not yet found any such case. The
majority refers to Whitmore
, 495 U.S.
(1990). But in that case the Court denied standing to a
prisoner who challenged the validity of a death sentence given to a
prisoner who refused to challenge his own
sentence. The plaintiff feared that in the absence of an appeal,
his fellow prisoner’s death sentence would be missing from
the State’s death penalty database and thereby skew the
database against him, making it less likely his challenges to his
own death penalty would succeed. The Court found no standing.
at 161. But the fellow prisoner’s lack of appeal
would have harmed the plaintiff only if (1) the plaintiff
separately obtained federal habeas relief and was then reconvicted
and resentenced to death, (2) he sought review of his new sentence,
and (3) during that review, his death sentence was affirmed only
because it was compared to an artificially skewed database.
at 156–157. These events seemed not very likely
In DaimlerChrysler Corp.
(2006), taxpayers challenged the constitutionality of a tax
break offered by state and local governments to a car manufacturer.
We found no standing. But the plaintiffs would have suffered
resulting injury only if that the tax break had depleted state and
local treasuries and the legislature had responded by raising their
., at 344.
the case that may come closest
to supporting the majority, the Court also found no standing. But,
as I pointed out, supra
, at 11, Lujan
is a case where
the Court considered when,
threatened harm would occur. 504 U. S., at 564, n. 2. The
relevant injury there consisted of a visit by environmental
group’s members to a project site where they would find
(unlawful) environmental depredation. Id
., at 564. The Court
pointed out that members had alleged that they would visit the
project sites “soon.” But it wrote that
“soon” might refer to almost any time in the future.
., n. 2. By way of contrast, the ongoing threat of
terrorism means that here the relevant interceptions will likely
take place imminently, if not now.
The Court has, of course, denied standing in
other cases. But they involve injuries less
likely, not more
likely, to occur than here. In a recent case, Summers
Earth Island Institute
, 555 U.S.
(2009), for example, the plaintiffs challenged a regulation
exempting certain timber sales from public comment and
administrative appeal. The plaintiffs claimed that the regulations
injured them by interfering with their esthetic enjoyment and
recreational use of the forests. The Court found this harm too
unlikely to occur to support standing. Id.,
at 496. The
Court noted that one plaintiff had not pointed to a specific
affected forest that he would visit. The Court concluded that
“[t]here may be a chance, but . . . hardly a
that the plaintiff’s
“wanderings will bring him to a parcel about to be affected
by a project unlawfully subject to the regulations.”
., at 495 (emphasis added).
In sum, as the Court concedes, see
at 15–16, and n. 5, the word
“certainly” in the phrase “certainly
impending” does not refer to absolute certainty. As our case
law demonstrates, what the Constitution requires is something more
akin to “reasonable probability” or “high
probability.” The use of some such standard is all that is
necessary here to ensure the actual concrete injury that the
Constitution demands. The considerations set forth in Parts II and
, make clear that the standard is readily met in
* * *
While I express no view on the merits of the
plaintiffs’ constitutional claims, I do believe that at least
some of the plaintiffs have standing to make those claims. I
dissent, with respect, from the majority’s contrary