National Press Club

Justices Scalia and Ginsburg talk about NSA on 'The Kalb Report'

April 21, 2014 | By Gil Klein |

Marvin Kalb hosts Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg for the concluding broadcast of 'The Kalb Report's' 20th season at the National Press Club, April 17, 2014

Marvin Kalb hosts Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg for the concluding broadcast of 'The Kalb Report's' 20th season at the National Press Club, April 17, 2014

Photo/Image: Noel St. John

In a far-ranging conversation with host Marvin Kalb April 17, Supreme Court Justice Antonin Scalia said the high court is the least qualified of the three branches of government to decide whether the National Security Agency should be allowed to maintain surveillance on the American people but Justice Ruth Bader Ginsburg said the court had no option but to rule on whatever comes before it.

“We can’t run away and say we don’t know much about that issue,” Justice Ginsburg said.

Scalia and Ginsburg, who are polar opposites on many of the major issues that come before the court, joined Kalb for the final program of the 20th season of “The Kalb Report."

Deciding how much authority should be given to the NSA is a question of balancing the emergency with the intrusion, Scalia said. When the emergency is high enough, he said, more intrusion can be justified.

But the court, he said, knows “nothing about the degree of risk. The executive knows. The Congress knows. But we know nothing.”

Asked whether the justices could call the president and ask him, both justices recoiled. That is not how the court works, they said. Justices must rule on what information comes to them. They cannot seek their own information, they added.

“We are at the mercy of the information that people bring to us,” Ginsburg said.

In talking about freedom of the press, the justices disagreed on the landmark 1964 New York Times v. Sullivan decision that shielded the news media from libel when reporting on public figures.

Even though it was approved unanimously, Scalia said he believed it was a wrong decision.

“I think the framers would have been appalled with the notion that they could be libeled with impunity,” Scalia said. “When the Supreme Court came out with that decision they were revising the Constitution.”

But Ginsburg said the decision must be put in the context of the time it came to the court.

“It was during the civil rights era where libel laws could be used as a way to squelch people who were asserting their freedom,” she said. “So I think Times v. Sullivan is a decision of major significance.”

Both Ginsburg and Scalia said they oppose proposals to allow the Supreme Court’s oral arguments to be televised.

“If I really thought it would educate the American people, I would be in favor of it,” Scalia said. But people would not watch cases from gavel to gavel, he said, and they would not watch the many boring cases where the court struggles to interpret laws.

“For every person who watches us from gavel to gavel, there will be 10,000 who watch a 15-second clip on the nightly news,” he said. “And I guarantee you it will not be characteristic of what we do. It will be man bites dog. So why should I participate in the mis-education of the American people?”

Televising a trial makes sense, Ginsburg said, because all of the information unfolds during the trial. But a Supreme Court case is different, she said, because most of the information is not presented during the hour-long oral argument but in briefs justices consider in chambers.

But, she said, televising the oral arguments “probably is inevitable” because of the pressure to do it.

"The Kalb Report" is a joint project of the National Press Club’s Journalism Institute, the University of Maryland University College, the George Washington University, Harvard’s Shorenstein Center on the Press, Politics and Public Policy, and the University of Maryland’s Philip Merrill College of Journalism.

It is underwritten by a grant from the Ethics and Excellence in Journalism Foundation.