Justice Scalia Looks Forward to Hearing NSA Spying Case

Supreme Court Justice Antonin Scalia Photograph by Tom Williams/Roll Call

Justice Antonin Scalia signaled during a law school talk on March 21 that the Supreme Court is very much aware that legal challenges to the National Security Agency’s domestic surveillance programs are headed toward the high court—and he, for one, thinks the cases will be intriguing.

The court’s most voluble member, an unabashed entertainer who jokes that he wants to do “nasty conservative things,” seemed fascinated by a question he got from an audience member at an unusual session sponsored by Brooklyn Law School. In the context of controversy over the constitutionality of various NSA domestic spying initiatives, the questioner wondered whether Scalia considered data stored on computer drives to be the sort of “effects” covered by the Fourth Amendment’s protection against “unreasonable” government searches.

“Ooh,” Scalia responded, obviously tickled. “Ooh,” he repeated. The justice declined to elaborate, implying he didn’t want to prejudge the issue. His cryptic response, though, indicated admiration for the acuity of the inquiry. The American Civil Liberties Union, Senator Rand Paul, and others have filed a series of suits challenging NSA activities revealed by former agency contractor Edward Snowden. The suits invoke the Fourth Amendment, which states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Scalia addressed a wide range of topics during a 90-minute question-and-answer for Brooklyn Law School students and alumni. The symposium was orchestrated by Andrew Napolitano, a former New Jersey state court judge who serves as a legal analyst on the Fox News Channel, teaches at Brooklyn Law, and is a friend of Scalia’s. Among the justice’s other quips and observations:

+ He has “never discussed legal philosophy in any depth” with his colleagues on the Supreme Court. Scalia scorned the commonly held idea that the justices engage in heavy jurisprudential debates when they gather for their private weekly conferences. By the time they reach the high court, he added, justices are too set in their thinking to revisit basic questions of constitutional interpretation or philosophical outlook.

+ His circumscribed role as a jurist prevents Scalia from doing “the nasty conservative things I want to do to the country.” He was joshing, of course. Sort of.

+ Despite his intellectual interest in the application of the Fourth Amendment to the conduct of the NSA, he considers it “stupid” to assume that the Supreme Court will have the last word on whether contemporary surveillance practices are appropriate. Why? Because the judicial branch is the “least competent” arm of government to evaluate the effectiveness and need for intrusive electronic spying. “The Supreme Court doesn’t know diddly,” he opined, “about the nature or severity of the threat.”

+ He has no patience for the libertarian notion that the justices ought to enforce “natural law” to protect property rights. “You’re a natural law freak,” Scalia responded (affectionately) to Napolitano’s persistent questioning on this front. “I enforce American law.”

+ “I don’t even read footnotes!” the justice exclaimed at one point, eliciting laughter and applause. It wasn’t clear whether he was being serious.

+ He has only disdain for critics who suggest that his dissents from recent Supreme Court rulings expanding gay rights contribute to hostility toward homosexuals. “That’s ridiculous,” Scalia snapped when a second-year law student made such a suggestion. “Hate whom you like.” Here, Scalia was being serious. The exchange was awkward, to say the least. Nick Allard, dean of Brooklyn Law, closed out the program at that point, and Scalia abruptly walked off the stage, lending a bitter aftertaste to an otherwise rewarding evening.

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