By Nic Corbett
U.S. Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg may not agree on much, but they have stayed great friends over the years—a rarity in Washington, D.C.
On the last show of the 20th season of the Kalb Report, the pair held a conversation about their unusual friendship, the First Amendment and NSA surveillance practices. The program was broadcast live on Thursday at the National Press Club.
Moderator Marvin Kalb explained how the two justices approach cases from their unique perspectives. Justice Scalia, the longest-serving justice currently on the court, is an originalist who thinks the Constitution should be interpreted as the Founding Fathers intended. However, Justice Ginsburg, who was appointed in 1993, considers the Constitution to be a living document, in that it changes as society evolves.
Despite their conflicting views, “they are great friends who dine together, travel together, love going to the opera together,” Mr. Kalb said. “In fact, they inspired a new opera called, of all things, ‘Scalia/Ginsburg.’ They are like the old days in this capital, when political differences would not stop a great friendship from flourishing.”
Justice Ginsburg recalled meeting Justice Scalia, whom she refers to as "Nino," when he gave a speech before a unit of the American Bar Association. She said she disagreed with most of what he said but “thought he said it an absolutely captivating way.”
In a discussion of the First Amendment, Justice Scalia downplayed the importance of the Bill of Rights in American democracy, which he called an “afterthought” added in 1791. The Founding Fathers structured the government to preserve a free society, he said.
“That’s what they debated about in 1787, and if you think that’s false, just look around the world,” Justice Scalia said. “Every tinhorn dictator in the world today has a bill of rights. It isn’t the Bill of Rights that produces freedom. It’s the structure of government that prevents anybody from seizing all the power.”
Justice Ginsburg disagreed, saying: “There was always the idea of rights. Think of our first great document, the Declaration of Independence.”
Mr. Kalb broached the subject of Edward Snowden and NSA surveillance, asking the judges if they believed the Washington Post deserved the Pulitzer Prize for its coverage. The judges deflected the question, with Justice Ginsburg deferring to the judgment of journalists in the audience.
“I don't read the Post, so I have no idea,” Justice Scalia quipped.
Mr. Kalb asked if either viewed Mr. Snowden as a traitor or a whistleblower. Justice Scalia responded, "Oh, that's not part of what I worry about really. That's a policy question, not a legal one. So I stay out of that."
The conversation veered to the Fourth Amendment, which protects Americans from unreasonable search and seizure. Mr. Kalb asked the justices if data considered important by the media or the government stored on a computer or in the cloud could be considered personal effects. If that were the case, he asked, would the U.S. government be unable to justify its NSA surveillance program, and therefore be in violation of the Constitution?
“No, because it’s not absolute,” Justice Scalia said. “As Ruth said, there are very few freedoms that are absolute. Your person is protected by the Fourth Amendment, but as I pointed out, when you board a plane, somebody can pass their 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.”
However, the two indicated that the court would likely hear a case on NSA surveillance. Justice Scalia was none too happy about the possibility. The Supreme Court, he said, is the "least qualified" institution to decide the question, explaining that the court, unlike the executive and congressional branches, “knows nothing” about the degree of risk.
“It’s foolish to have us make the decision, because I don’t know how serious the danger is in this NSA stuff,” he said.
Any evidence used to decide the case must be made available to all parties and their lawyers, Justice Ginsburg added. The Supreme Court can’t just call up the White House to get answers to the justices’ questions. But she said she doesn’t think the Supreme Court has a choice.
“The court doesn’t decide, ‘We’re going to pick this area and straighten it out today,’” Justice Ginsburg said. “There are petitions for review, and if there is a law that the government says was violated and the other side says, ‘No, the government can’t do this, can’t engage in that kind of surveillance.’ If that case comes to us, we can’t run away and say, ‘Well, we don’t know much about that subject, so we won’t decide it.’ ”
The Kalb Report series, moderated by Mr. Kalb, is jointly produced by the National Press Club Journalism Institute, the George Washington University, Harvard University, University of Maryland University College and the Philip Merrill College of Journalism at the University of Maryland. The series is underwritten by a grant from Ethics and Excellence in Journalism Foundation.