Justice Gorsuch said Monday’s case, Federal Bureau of Investigation v. Fazaga, No. 20-828, may well be the first kind, in which the government has a choice: Does it want to disclose secret evidence to defend itself or does it want to risk losing a sum of money in the interest of national security?
Understand the Supreme Court’s Momentous Term
Card 1 of 5The Texas abortion law. After the court let Texas effectively outlaw most abortions in a 5-4 decision, the justices heard arguments that could allow it to reverse course. The case puts Justice Brett Kavanaugh in the spotlight as the most likely member to switch sides.
The Mississippi abortion case. The court is poised to use a challenge to a Mississippi law that bars most abortions after 15 weeks to undermine and perhaps overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion.
A major decision on guns. The justices will consider the constitutionality of a longstanding New York law that imposes strict limits on carrying guns in public. The court has not issued a major Second Amendment ruling in more than a decade.
A test for Chief Justice Roberts. The highly charged docket will test the leadership of Chief Justice John G. Roberts Jr., who lost his position at the court’s ideological center with the arrival last fall of Justice Amy Coney Barrett.
A drop in public support. Chief Justice Roberts now leads a court increasingly associated with partisanship. Recent polls show the court is suffering a distinct drop in public support following a spate of unusual late-night summer rulings in politically charged cases.
Justice Gorsuch said he was wary of letting the government keep both its secrets and its money. “In a world in which the national security state is growing larger every day,” he said, “that’s quite a power.”
The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the plaintiffs in 2019, but on a different ground. The appeals court said a provision of the Foreign Intelligence Surveillance Act of 1978, or FISA, established procedures for considering national security information and that the trial judge should have used them instead of dismissing the case after the government invoked the state secrets doctrine.
Several justices seemed unconvinced by that ruling and indicated that they were reluctant to parse the technical language of FISA to decide when and how it applies.
Justice Elena Kagan sketched out what she said might be “an attractive solution.” She said the case could be returned to the appeals court for a fresh look at “the easiest question in this case” — that of “when dismissal is appropriate” under the state secrets doctrine.
Last month, the Supreme Court heard arguments in yet another state secrets case, that one about whether the government could invoke national security to block testimony by two C.I.A. contractors who were instrumental in the brutal interrogations of the detainee known as Abu Zubaydah, who was waterboarded more than 60 times and is being held without charge at Guantánamo Bay.