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In Hawaii Talk, Scalia Again Raises Concerns About Court Ruling On Spying Issues

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Nathan Eagle

HONOLULU -- Loathed by oh-so-many liberals, U.S. Supreme Court Justice Antonin Scalia waded into the deep-blue Aloha State Monday for a talk with law students at the University of Hawaii.

The surprise for much of the audience wasn't that the supremely self-confident Scalia stated his constitutional judicial philosophy with authority; it was his edgy wit.

UH law school dean Avi Soifer prepared the students with his introductory remarks, saying that Scalia is known as the most active questioner and commentator of the nine justices, as well as the most humorous.

The state’s monthly test of its tsunami warning system didn’t phase Scalia when the sirens sounded during the middle of his comments on the 2nd Amendment. “You never got over 1941, did you?” he said with a smile, a clear reference to the attack on Pearl Harbor.

Many in the crowd whispered among themselves that they couldn’t disagree more with the intensely conservative justice's opinions on issues like gay marriage, abortion and the death penalty, but students' queries proved to be surprisingly soft, perhaps due to the legal gravitas of the longest-serving member of the court. (Journalists were not permitted to ask Scalia questions.)

Of course you can enjoy someone and still passionately disagree with his or her judicial philosophy. Scalia touched on that very idea when he talked about his close friendship with Clinton-appointee Justice Ruth Bader Ginsburg, “who God knows does not always vote with me.” (Scalia was appointed by President Ronald Reagan.)

Supreme Schtick

Scalia opened the informal talk with several minutes on originalism, his “main schtick,” before taking questions from the roughly 150 students, professors and others gathered in the law school courtyard. He’s a firm believer in interpreting the Constitution as it was meant when it was adopted.

“This anthropomorphic notion of a biotic Constitution is absurd,” he said, but that’s not to say his philosophy is inflexible.

“You want the death penalty? Persuade your fellow citizens it’s a good idea. You want the opposite? Persuade them the other way.”

Scalia encouraged the students to question professors who favor a “living Constitution” by asking them what theory they would use to restrain judges from overreach.

“You either use the original understanding of the Constitution or you tell your judges, ‘Come govern us. You must know the answers to these profound moral questions such as the death penalty, abortion, homosexual sodomy, suicide. After all, you went to Harvard Law School — maybe even Yale Law School — so you must know the answers.’”

As an example, Scalia talked about how the Supreme Court reversed its position on how the 4th Amendment, which prohibits unlawful search and seizure, applies to wiretapping so that there is now a “reasonable expectation of privacy.”

Given the many high-stakes questions advancing toward the court as a result of Edward Snowden's revelations about the National Security Agency spying on Americans, Scalia again raised concerns about the court having the final say in the matter because he believes it knows far less about what’s going on than Congress or the executive branch.

“I don’t know why you would want us to be the last word on that,” he said.

Scalia said he doesn’t look forward to the cases coming down the pike on the right to bear arms in part because of his broad interpretation of “arms,” as it’s referenced in the Constitution, to include military weapons.

“What about shoulder-fired missiles that can take down an airplane?”

Among the softball-questions lobbed Scalia's way:

Is his protection detail cumbersome? Scalia, an avid hunter, said security doesn’t always follow him around.

“They’re not in the duck blinds with me.”

Does he believe the executive branch is abusing its power? Scalia said it’s not a function of the court to keep Congress and the president in line. The court’s job is to protect individuals, he said, not “shape up the government.”

Scalia drew widespread laughs when he said his favorite opinions to write are dissenting ones — because there’s no need to compromise on any position.

“Of course, the most important element of a good dissent," he added, "is a really bad majority opinion."

The most fun he had was slamming the court’s majority view in PGA Tour v. Casey Martin. It was an Americans with Disabilities Act case in 2001 involving a golfer who wanted an exception to the Professional Golf Association's rules that require players walk the course.

“The question — before the Supreme Court of the United States — was whether walking was an essential part of golf,” Scalia said. “It’s a game! If it says you have to hit the ball with a Coca-Cola bottle, that’s the game.”

His dissent started with a tongue-in-cheek reminder about the law and the links.

I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes.

There are some questions, however, that even Scalia does not have an answer for. He pondered the problem of politicians passing laws just to show they are concerned about an issue, like he says Congress did last year when it reauthorized the Violence Against Women Act.

“Do the states not have laws against beating up women? Of course they do. Is the federal government really going to send the FBI? Knock, knock, knock. ‘Sir, have you been beating your wife?’ The FBI’s not going to do that.

“But it shows the concern of the federal government. We have a lot of laws like that. They are less meant for enforcement than they are for political effect. I don’t know what you do about that.”

Scalia, ever the witty justice, offered parting advice:

“Banish from your mind the notion that everything that is stupid is unconstitutional."

* Contact Nathan Eagle via email at neagle@civilbeat.com or Twitter at @NathanEagle.

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