Speaking at an event sponsored by the Federalist Society in Montana, Scalia said the high court should not intervene on issues such as wiretapping and “inventing” new minorities, according to reports.
“It’s not up to the courts to invent new minorities that get special protections,” Scalia said, in an apparent reference to the court’s recent decisions on gay marriage and federal benefits for same-sex couples.
Scalia said courts should not create new rights, leaving that to constitutional changes or to Congress.
The Supreme Court in June overturned a key part of the Defense of Marriage Act that blocks married same-sex couples from receiving some federal benefits and, in a separate case, paved the way for gay marriages to resume in California.
Scalia wrote a blistering dissent in the court’s decision to overturn DOMA.
Scalia on Monday also warned that courts should be careful not to rule on some intelligence questions that were historically handled by Congress, such as the extent of National Security Agency surveillance of phone and email records.
Congress has information about how serious a national security threat is, Scalia said, where the judiciary does not.
“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,” Scalia said.
On Sunday, Sen. Rand Paul (R-Ky.), a critic of the NSA’s surveillance, called for the Supreme Court to review the constitutionality of the top secret programs.