Scalia Hints NSA Surveillance Is Going To The Supreme Court
The topic of the NSA's controversial surveillance of telephone metadata came up during a laughter-filled Q&A between Scalia and Judge Andrew Napolitano, a faculty member at Brooklyn Law School and a close personal friend of the justice he accidentally called "Nino."
While Scalia said the high court will likely take up NSA surveillance, he told Brooklyn Law students and other guests that judges shouldn't be deciding matters of national security.
"The Supreme Court doesn't know diddly about the nature and extent of the threat," Scalia said. Later on, he added, "It's truly stupid that my court is going to be the last word on it."
Still, Scalia will have to vote one way or another. He strongly hinted he would rule that NSA's surveillance does not violate the Constitution if and when the isssue comes before the Supreme Court. There's been a lot of speculation about whether the justices will eventually take on the issue since lower courts have issued conflicting rulings on whether it's legal.
One judge has ruled the spying violates the Fourth Amendment, which bars unreasonable searches and seizures without a warrant. But it doesn't look like Scalia would buy that argument under his strict interpretation of the Constitution.
The text of the Fourth Amendment bars unwarranted searches of "persons, houses, papers, and effects." And, as Scalia told the audience, "conversations are quite different" from all four of those things.
One astute law student said something that may make Scalia reconsider his initial thinking on the constitutionality of the NSA's domestic surveillance. That student asked if data in a computer were considered "effects" under the Fourth Amendment, in an apparent reference to the fact that the NSA has captured communications over the Internet.
Scalia, visibly impressed by the question said, "I better not answer that. That is something that may well come up [before the Supreme Court]."