An unusual attempt to win review of the National Security Agency’s surveillance of domestic telephone records failed in the U.S. Supreme Court on Monday.

The justices, without comment, denied a petition for a writ of mandamus from the Electronic Privacy Information Center (EPIC), a Washington nonprofit privacy-rights organization. The petition charged that the Foreign Intelligence Surveillance Court exceeded its statutory authority under the Foreign Intelligence Surveillance Act when it ordered Verizon to turn over “millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation.”

In other action, the high court also denied review in a challenge to Alabama’s practice of allowing judges to override jury verdicts in capital murder cases. Two justices dissented from the denial in Woodward v. Alabama: Stephen Breyer and Sonia Sotomayor.

Court scholars and others had predicted that EPIC faced an uphill struggle in In re EPIC because of the petition’s unusual posture. The organization filed its challenge directly with the Supreme Court and no lower court ever reviewed the matter.

Supreme Court rules describe the writ of mandamus as an extraordinary writ issued as a matter of discretion “sparingly exercised.” The justices in a 1980 decision quoted lyrics by Gilbert & Sullivan to describe the chances of winning mandamus as “What never? Well, hardly ever!”

“Obviously, we are disappointed by the Supreme Court’s decision,” said Marc Rotenberg, president of EPIC and lead counsel. “The surveillance order was clearly unlawful. There is simply no way to establish relevance for the collection of all telephone records on all U.S. telephone customers for an intelligence investigation.”

According to Rotenberg, the Foreign Intelligence Surveillance Act makes it very difficult to challenge the court’s orders. “That is why we urged the Supreme Court to take the case and reverse the order of the Foreign Intelligence Surveillance Court.”

The surveillance court on April 25 ordered Verizon Business Network Services to turn over to the NSA all telephone records for calls made “wholly within the United States, including local telephone calls.” Issuing the order was Senior District Judge Roger Vinson of Tallahassee, Fla., a member of the surveillance court, acting on an application by the FBI.

Until recently, challenges to the surveillance program have failed because courts have found that the challengers lacked standing. Last term, the justices, in a 5-4 decision in Clapper v. Amnesty International, ruled that a group of civil and human rights organizations, lawyers, writers and others lacked standing to challenge the Foreign Intelligence Surveillance Act Amendments Act of 2008. EPIC’s claim that the Verizon order violated its First Amendment-protected right of advocacy with members of Congress, journalists and others appeared to suffer a similar standing problem.

Additional challenges to the surveillance order have been filed. A federal court in New York will hear argument Friday in the American Civil Liberties Union’s challenge to the constitutionality of the NSA’s mass call-tracking program. The lawsuit, which asks the court to end the program, argues that the NSA is violating the freedom of association protected by the First Amendment as well as the right to privacy protected by the Fourth Amendment. The suit also charges that the program exceeds the authority that Congress provided to the government through the USA Patriot Act.

In the Alabama case, a trial judge overrode the jury’s sentence of life in prison without parole for Mario Woodward, convicted of killing a Montgomery city police officer. By a vote of 8-4, the jury decided that mitigating circumstances outweighed the aggravating circumstances. The trial judge conducted his own sentencing hearing and after taking additional evidence from the prosecution and making findings of fact, imposed the death penalty.

Three states—Alabama, Delaware and Florida—permit the trial judge to override the jury’s sentencing decision. In 1984, the U.S. Supreme Court upheld Florida’s judicial override law in Spaziano v. Florida, and in 1995, it upheld Alabama’s statute in Harris v. Alabama.

“Eighteen years have passed since we decided Harris, and in my view, the time has come for us to reconsider that decision,” Sotomayor wrote for herself and Breyer in dissent from the denial of review. During that time, she noted, the practice of judicial overrides had become increasingly rare.

Among the four states that permitted judicial overrides at the time of Harris, she added, Alabama is now the only one in which judges continue to override jury verdicts of life without parole. One of the four states, Indiana, no longer permits life-to-death judicial overrides at all. Only one defendant in Delaware has ever been condemned to death by a judicial life-to-death override, and the Delaware Supreme Court overturned his sentence. And no Florida judge has overridden a jury’s verdict of a life sentence since 1999.

“In sum, whereas judges across three states overrode roughly 10 jury verdicts per year in the 1980’s and 1990’s, a dramatic shift has taken place over the past decade: Judges now override jury verdicts of life in just a single state, and they do so roughly twice a year.”

Sotomayor said the practice has led to arbitrary results in Alabama, which makes a challenge worthy of the justices’ review. And, she added, the practice also appears to violate the high court’s recent Sixth Amendment jurisprudence, which holds that when the state “makes an increase in a defendant’s authorized punishment contingent on the finding of fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt.”

Contact Marcia Coyle at