Still, many people expect the Supreme Court will have the final word on the program, especially if other appellate judges agree with Leon.
Among those who think the Supreme Court will weigh in is Justice Antonin Scalia, who addressed the topic in July in a question-and-answer session with a technology group. He didn't sound happy about the prospect of such a ruling. Scalia said the elected branches of government are better situated to balance security needs and privacy protections.
But he said that the Supreme Court took that power for itself in 1960s-era expansions of privacy rights, including prohibitions on wiretapping without a judge's approval.
"The consequence of that is that whether the NSA can do the stuff it's been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed," he said. Scalia repeatedly used the term "wiretap" in his comments, but indicated later that he was speaking more generally about NSA surveillance, including the collection of phone records.
In the police pager case, Scalia was part of an exchange with Chief Justice John Roberts that sounded almost like a comedy routine.
Roberts was questioning the lawyer for the officer whose messages were searched. He asked whether it was reasonable for the officer and others to assume that a third party, the pager service, was actually routing the messages from sender to recipient, much the way a phone company does with calls.
"I wouldn't think that. I thought, you know, you push a button, it goes right to the other thing," Roberts said.
Sitting to Roberts' right, Scalia chimed in, "You mean it doesn't go right to the other thing?"