Uh oh: Scalia hints he’d back NSA domestic surveillance

Antonin Scalia

Though cases dealing with the National Security Agency’s domestic surveillance programs are still a long way from going to the Supreme Court, Justice Antonin Scalia may have already tipped his hand on how he may vote, and it’s not good news for privacy advocates:

While suggesting that the high court will take up NSA surveillance, Scalia expressed his opinion that judges should not 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, he hinted he would rule that NSA surveillance does not violate the Constitution if and when the issue comes before the Supreme Court. Although one judge has ruled the spying violates the Fourth Amendment, Scalia may disagree based on his strict interpretation of the Constitution.

The comments came on Friday at an event sponsored by the Brooklyn School of Law. The discussion was led by Judge Andrew Napolitano, a legal commentator for Fox News and vocal opponent of the NSA’s domestic surveillance programs. Scalia made similar comments in September.

Scalia casts himself as an originalist. That, however, hasn’t stopped him from voting to expand the Commerce Clause (Gonzales v. Raich), ignoring the writ of habeas corpus (Boumediene v. Bush), and haughtily rejecting arguments that are based in originalism (McDonald v. Chicago).

There several cases pending before federal courts over the NSA’s domestic surveillance, the most high-profile of which was filed last month by Sen. Rand Paul (R-KY) and FreedomWorks. To date, just one federal judge has ruled that the bulk metadata collection program infringes upon Americans’ Fourth Amendment rights.

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