The court is wrong that this is not a Due Process Clause violation. Secret laws are anathema to the Anglo-American view of due process. And in a common law system legal opinions are "law" just as much as statutes. Beyond that, the court's reasoning that a litigant should trust the other side's characterization of a case turns the concept of adversarial litigation on its head. It's a laughable view.
Yes. Opinions are important in interpreting whether or not a historical case can be interpreted as a precedent in a current one. That's one of the principal concepts in common law systems.
Instead of an Article III court, that sounds like an ex parte conversation predating the matter, which the judge is using to decide the matter, which is not ok. If this really is required by Congress, judges ought to give serious thought to whether accepting an appointment to the FISC is consistent with their ethical duties, I.e., "A judge should not ... accept ... an appointment if the judge’s governmental duties would tend to undermine the public confidence in the integrity, impartiality, or independence of the judiciary." That article III judges are willing to administer procedure like that gives pause.
Title is a bit misleading. The court didn't deny access to statute. The court denied access to opinions issued by the FISC. This is still really terrible because precedent is, in a way, just as important as statute in determining legal outcomes. But it's a little bit different than what the title of TFA would have you believe.
Yes, precedent can in some instances be considered 'law'. But to a non-legal layperson it's not generally referred to as such. Most people when thinking about what the 'law' is think about statute.
So it's still terrible, but the article headline is a bit misleading.
