Scalia: SCOTUS shouldn't 'invent' new minorities

Some wisdom from Supreme Court justice Antonin Scalia, who has sat on the court long enough to see the damage that can occur by legislating from the bench.

The Hill:

Speaking at an event sponsored by the Federalist Society in Montana, Scalia said the high court should not intervene on issues such as wiretapping and "inventing" new minorities, according to reports.

"It's not up to the courts to invent new minorities that get special protections," Scalia said, in an apparent reference to the court's recent decisions on gay marriage and federal benefits for same-sex couples.

Scalia said courts should not create new rights, leaving that to constitutional changes or to Congress.

The Supreme Court in June overturned a key part of the Defense of Marriage Act that blocks married same-sex couples from receiving some federal benefits and, in a separate case, paved the way for gay marriages to resume in California.

Scalia wrote a blistering dissent in the court's decision to overturn DOMA.

Scalia on Monday also warned that courts should be careful not to rule on some intelligence questions that were historically handled by Congress, such as the extent of National Security Agency surveillance of phone and email records. 

Congress has information about how serious a national security threat is, Scalia said, where the judiciary does not.

"Of all three branches, we are the one that knows the least about the nature of the threats to the country, and we have the least ability to find out about it," Scalia said.

Definitely a stricter constructionist view than most Supremes. But I think he'd find some disagreement in how he sees surveillance programs and privacy issues.

While Scalia is correct that the court doesn't have the same information about threats that Congress does, the court is also uniquely qualified to rule on the basic constitutionality of intelligence programs. Scalia is saying, in effect, that even if the NSA program violates our privacy rights, the courts perhaps shouldn't interfere because Congress should decide if we give up a little liberty for some security.

I would think that this position encourages the court to abdicate its primary responsibility to protect our liberties by ruling on the constitutionality of intelligence gathering techniques. It may be the "strict constructionist" view, but when his remarks are placed in the context of our current debate, it falls short of common sense.

And that's something we need a lot more of both from the court and congress.