Scalia: What do I know about NSA spying?

Supreme Court Justice Antonin Scalia may come across as the ultimate know-it-all, but the truth is that he likes to emphasize what people in his lofty position don’t know.

In June, in a decision in which the court unanimously ruled that drug companies couldn’t patent human genes, Scalia dissented from a portion of Justice Clarence Thomas’ majority opinion that set forth the science behind DNA. “I am unable to affirm those details on my own knowledge or even my own belief,” Scalia wrote.

Now Scalia is playing, if not dumb, then at least uninformed about another legal issue with scientific, or rather technical, overtones: electronic surveillance by the National Security Agency.

During a Q&A after a speech to a Virginia technology group, Scalia said that the legality of the programs detailed by uber-leaker Edward Snowden probably would come before him and his colleagues. He found it an uninviting prospect.

“The consequence of that is that whether the NSA can do the stuff it’s been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed,” Scalia said.

It's true that Supreme Court justices aren’t the world’s greatest experts on data mining and cyber surveillance. But neither are they experts on thermal imagers used to detect infrared radiation. That didn’t stop the court from ruling in 2001 that the use of that technology to detect the cultivation of marijuana inside a house was a search under the 4th Amendment and presumptively unconstitutional without a warrant. Scalia wrote the majority opinion in that case.

Like it or not, advances in technology raise legal and constitutional questions, and the Supreme Court is paid to resolve them. Instead of complaining that he’s not up on this newfangled technology, Scalia should stop the poor-mouthing and order his law clerks to get up to speed.


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