In the 1970's and 1980's, the courts were extremely active in policing the government. It was by all measures a much scarier time. Obama has a few drone strikes--Reagan was funding revolutions in other countries. It was the height of the cold war and the threat of nuclear holocaust, and the palpable fear about communism paled anything we see today over terrorism. Even in the early 2000's, in the throes of the aftermath of 9/11, the Supreme Court forced the Bush administration to dramatically adjust its policy on giving legal representation to inmates at Guantanamo.
Since then what has happened is a process of delegitimization of the judiciary. And both sides of the aisle have been to blame for this: from the right's talk of activist judges to Obama's physically menacing over the Justices during his state of the union. The judiciary has been at fault too: having overextended itself in the culture wars of the 1960's and 1970's, it very self-conciously adopted a mantra of extreme judicial restraint.
What you have left today is a judiciary that might no longer be able to effectively police the government. I've made it clear elsewhere that I don't think the current surveillance program is illegal, but it might not matter one way or the other. The judiciary's role in our system of checks and balances is ultimately rooted in faith in the legitimacy of the institution, and that faith has been dramatically eroded over the last two decades.
A few drone strikes? We've built drone bases around the globe and are murdering thousands of innocent civilians with those strikes.
Fund revolutions in other countries? We're doing that in Syria right now. We actively participated in the revolution in Libya.
The scale of proxy wars engaged in then versus today can scarcely be compared its so different.
http://www.nytimes.com/2011/04/15/world/15aid.html?pagewante...
http://www.youtube.com/watch?v=Fgcd1ghag5Y
And there isn't even a geostrategic goal like turning Afghanistan against the USSR; it's just setting fire to formerly stable Muslim nations in the name of "democracy", just as Bush did.
In hindsight Bush. vs. Gore did a lot to erode this faith, and the ruling was probably a mistake.
Although, to it's credit, the court did not overturn Obamacare, probably because deciding such a partian battle would have further eroded this faith.
That's not the only way to view the situation, though. That's the "software" view of the world. I take a "hardware" view of the world. That data is sitting on Google's property. Its servers, its hard drives. You've given up posession of that data. Under that view, rummaging through that data is neither unconstitutional nor against the spirit thereof.
more generally, the constitution just has nothing to say about the larger issue of "tracking." The founders wrote the 4th with a specific grievance in mind: British searches of houses with very broad warrants. They just didn't address the government collecting information you left out in the world to track you.
Scenario 2: NSA wins, People lose, Lawyers wins
Now, who's the smartest?
ACLU lawyers make a fraction of what they could working for private law firms.
According to this article from 2007, a job at the ACLU will get you $59k starting wage vs. $160k working for private law firms. Note that these folks have the same college loans to payback. I think we owe them our respect and gratitude.
This isn't always the case: http://www.studentaid.ed.gov/sites/default/files/public-serv...
(At least employees of the ACLU foundation are eligible for loan forgiveness, and $59k is low enough that it would actually matter)
(There is a lot of electronic case filing now, but ..) For example, for the supreme court, you need 40 copies.
These poor bastards lose no matter what, because of how many times they have to empty the recycling bins.
