Judges don't wake up in the morning and say, "Well, I would like to do the right thing and declare this surveillance unconstitutional, but there was that Brown v. Board of Education sixty years ago, and so I'm going to punt!" Especially when you have tenure for life and -- in the case of the judge mentioned in my article that started this thread -- are voluntarily retiring in a month anyway. (Even if you get removed from office, which of course never happens, you'd get 5x - 10x your salary in the private sector.)

In general, lower courts follow the lead of appellate courts, which in turn follow the lead of the Supreme Court. And on constitutional issues, those justices don't like to get too far out in front of what they believe the national consensus to be. That's why you have toothless rulings like U.S. v. Lopez, a commerce clause case that conservatives initially applauded, only to have Congress slightly tweak the law without complaint from the courts.

> Judges don't wake up in the morning and say, "Well, I would like to do the right thing and declare this surveillance unconstitutional, but there was that Brown v. Board of Education sixty years ago, and so I'm going to punt!"

Sure, but there is definitely a "mood" in the judiciary. If you read opinions from today versus those in say the 1970's, you can definitely see a self-concious deference to the political branches that didn't exist back then. E.g. compare the D.C. Circuit of the 1960's to the current one.

You might be right. Or at least I'm not saying you're wrong. But do you have any cites that compare then-vs-now?

In reality the DC Circuit spends much of its time today striking down regulations enacted by the political branches, and actually takes some glee in doing so. In HNesque areas, the court tossed out the Net neutrality regulations and the broadcast flag regulations. There's a reason the president wants to tilt the makeup of that court.