Orin Kerr writes:
In the wake of the dueling opinions by Judges Leon and Pauley about the NSA’s Section 215 telephony metadata program, a lot of commentators are assuming that the issue is heading to the Supreme Court. If a federal circuit court rules that the program is unconstitutional and survives en banc review, then I agree that Supreme Court review is likely. Invalidating a major federal program will usually get the Justices’ attention. But let’s assume that the Second Circuit upholds Judge Pauley’s decision, and the DC Circuit reverses Judge Leon. Will the Supreme Court intervene if the Second and DC Circuits uphold the program?
We don’t know, of course, as it all depends on what might get four votes to grant cert. It’s a discretionary call, so it’s hard to predict. At the same time, I think a lot of commentators overestimate the chances that the Supreme Court would step in.
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