BOZEMAN, Mont. — The U.S. Supreme Court is making decisions that should be left to Congress or the people, from wiretapping to “inventing” new classes of minorities, Justice Antonin Scalia said Monday.
In an apparent reference to the court’s recent decisions on gay marriage and benefits for same-sex couples, Scalia said it is not the function of the courts to create exceptions outside the Constitution unless a majority of people agree with them.“It’s not up to the courts to invent new minorities that get special protections,” Scalia told a packed hotel ballroom in southwestern Montana.
The Supreme Court earlier this year cleared the way for same-sex marriages to resume in California and struck down part of a federal law that prevents legally married gay couples from receiving benefits. Scalia voted against the majority of justices.
Changes to the Constitution were made to protect minorities and to give women the right to vote, but that’s not how the court operates today, he said.
Rather, a majority of five judges decide issues that should be in the hands of Congress or made through a change to the Constitution.
Questions such as National Security Administration surveillance of phone records or the privacy questions in the Patriot Act were once answered by Congress, which knows how serious a threat is compared to the intrusiveness of the surveillance. But now the courts are doing so.
Scalia spoke before more than 300 people in Bozeman in a gathering sponsored by the Federalist Society, which he helped launch more than 30 years ago to fight the perception of liberal bias at the nation’s law schools. The group is trying to open a chapter in Montana.
Scalia was appointed to the Supreme Court by President Ronald Reagan in 1986, and his opinions have placed him among the most conservative justices on the bench.
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