Scalia predicts NSA surveillance will be decided by Supreme Court

"The consequence of that is that whether the NSA can do the stuff it’s been doing...which used to be a question for the people...will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed," Scalia said.

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Scalia noted that the Supreme Court had initially ruled in 1928 there were no constitutional prohibitions on wiretaps because conversations didn’t have an explicit privacy protection under the Fourth Amendment, according to the AP.

The court overturned the decision, Olmstead v. U.S., 40 years later. Scalia said that the court found "there’s a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage.”

Scalia said the Constitution calls for a balancing test between the threat that’s posed and whether a search or seizure is reasonable, making a comparison to pat downs at airports.

"That’s a terrible intrusion of privacy," Scalia said. "But you’re willing to do it because of the seriousness of the threat."