Justice Antonin Scalia told an audience in Montana on Monday that the Supreme Court is overstepping its bounds by providing special protections to "invented" minority groups, like gay people and African-Americans.
“It’s not up to the courts to invent new minorities that get special protections,” he told an audience of about 300 people at an event sponsored by the conservative Federalist Society.
The high court struck down the Voting Rights Act, the Defense of Marriage Act (DOMA) and California’s Proposition 8 this year. Scalia dissented when it came to DOMA and Prop 8.
Scalia said courts should not create new rights; those matters are best left to voters or Congress. He suggested that justices are fighting a losing battle to preserve the “original meaning” of the Constitution.
“The most important question when there is a nomination is not, ‘Is this person a good lawyer,’” he said. “It’s, ‘Will this person put in the new rights that I like, and take out the ones I dislike.’ It’s like having a mini-constitutional convention every time you nominate a new justice.”
Kentucky Sen. Rand Paul, Ky., said Sunday that the Supreme Court should review the National Security Agency’s surveillance programs.
Scalia said national security questions should also be handled by Congress because it has more information on the extent of a security threat than the judiciary branch.
“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,” he said.