How much you wanna bet that we won't hear a peep from the rightwing about "activist" judges?

ACLU:

In a 2-1 decision, the Sixth Circuit Court of Appeals today dismissed a legal challenge to the Bush administration's warrantless surveillance program. The challenge was brought by the American Civil Liberties Union on behalf of prominent journalists, scholars, attorneys and national nonprofit organizations who say that the unchecked surveillance program is disrupting their ability to communicate effectively with sources and clients.

Even though the plaintiffs alleged a well-founded fear that their communications were subject to illegal surveillance, the court dismissed the case because plaintiffs could not state with certainty that they had been wiretapped by the National Security Agency.

Like that? The plaintiffs have no standing because they can't prove they've been wiretapped by the most secretive administration in history. The legality of the wiretapping itself was not at issue--it's already been declared unlawful--but until you can prove they've done it, you're completely out of luck.