by Lyle Denniston

Supreme Court Justice Ruth Bader Ginsburg on Friday refused to block enforcement of a broad new grant of detention power for the government, indicating that she felt a need to be cautious about putting into effect a judge’s ruling that struck down that new law, at least while the issue was under review in a federal appeals court.  Ginsburg acted without seeking a response from the federal government to a plea by writers and political activists who fear they may be seized under that new law.  [This blog covered the filing of the stay application earlier this week.]

The full text of Ginsburg’s order, as shown on the Court’s docket, reads: “Application (12A600) denied by Justice Ginsburg.  The application to vacate the order entered by the United States Court of Appeals for the Second Circuit staying a permanent injunction entered by the United States District Court for the Southern District of New York is denied.  See Doe v. Gonzales, 546 U.S. 1301, 1308-1309 (2005) (GINSBURG, Circuit Justice).”

In the cited Doe decision, Justice Ginsburg — acting then as on Friday in her individual capacity as a Circuit Justice — had declined to put into effect, while an appeals court reviewed it, a district judge’s ruling finding unconstitutional a provision of the post-9/11 “PATRIOT Act” that gave the FBI broad authority to demand electronic communications records for use in anti-terrorism investigations.  In that opinion, Ginsburg said that the Court should hesitate to interfere with an appeals court that was proceeding on an expedited schedule to review a ruling against a federal law, and that, in any event, the Court should be cautious when such a law had been nullified in a lower court.

The new detention law appeared to have expanded the executive branch’s power to detain individuals believed to have aided or supported a terrorist network.  U.S. District Judge Katherine B. Forrest in New York City, in rulings in May and September, said the law was too vague and thus threatened to chill the First Amendment rights of journalists and others who potentially could be targeted by the law.  She rejected the government argument that the new law did not add to the government’s existing detention authority.

The Second Circuit Court on October 2 blocked Judge Forrest’s order that would have prevented enforcement of the law, at least after Congress had a chance to consider narrowing the new law’s scope.  While putting the Forrest order on hold, the Second Circuit did order an expedited review schedule, under which briefing has now been completed.  That is the same kind of scheduling that led Justice Ginsburg to refuse to lift a stay in the Doe case seven years ago.

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