Breitbart.com reported on this conversation between Justices Antonin Scalia, Ruth Ginsburg, and the National Press Club.
It is a fascinating if frustrating revelation of how Scalia thinks.
Moderator Marvin Kalb questioned Scalia about whether the NSA wiretapping cloud be conceivably be in violation of the Constitution:
Justice Antonin Scalia said, “No because it’s not absolute. As Ruth has said there are very few freedoms that are absolute. I mean your person is protected by the Fourth Amendment but as I pointed out when you board a plane someone can pass his hands all over your body that’s a terrible intrusion, but given the danger that it’s guarding against it’s not an unreasonable intrusion. And it can be the same thing with acquiring this data that is regarded as effects. That’s why I say its foolish to have us make the decision because I don’t know how serious the danger is in this NSA stuff, I really don’t.”
Kalb asked if they could make a call to the White House and both Scalia and Ginsburg almost shouted, “No.” Ginsberg explained they are not permitted to make a decision on any basis outside the record of the case.
As much as I disagree with Scalia, I can see his point. It is true that the Supreme Court doesn’t have access to real world threat assessments.
But think about what he is saying. Basically, any part of the government that can stir up panic and fear gets a Constitutional pass to commit “a terrible intrusion” on our persons because the “danger” makes it all worth it.
I’m tempted to say, “Fine.” If the Supreme Court is not up to the task, let the states make the decision by neutralizing NSA data collection centers. But then, I wonder, will the Supreme Court allow the Tenth Amendment to function? Will Scalia say it is foolish for the Supreme Court to decide between the states and the NSA?
I doubt it.