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Scalia Explains Stance on Abortion, GPS Ruling

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Photo of U.S. Supreme Court Justice Antonin Scalia courtesy of ABA Media Services.

Justice Antonin Scalia doesn’t shy away from controversy, even before a large crowd of ABA members at the midyear meeting in New Orleans.

Scalia didn’t hesitate when an audience member asked him whether his Catholic religion influenced his opposition to Roe v. Wade. The answer, Scalia said, is no. If he followed religious doctrine, he would agree with those who say the Constitution requires states to ban abortion. Scalia said he believes the Constitution says nothing about abortion and states can permit or ban it based on the will of the voters.

Scalia answered questions posed by former Boston University law dean Ronald Cass and then from the audience. Topics included abortion, religion, lawyer pay and the justice’s recent opinion on police use of a GPS device to track a criminal suspect.

The only topic that was off-limits—and it was Cass who said Scalia couldn’t answer—was on the Constitution and same-sex marriage.

Scalia took on the legal profession and the high pay scales that lure top students into the law. He noted he earns less money than his former law clerks who become first-year associates at law firms. What’s more, he said, they get a $250,000 signing bonus.

“There’s something wrong with a system where getting someone just a little bit brighter is worth that kind of money,” he said.

Scalia didn’t retreat from previous assertions that too many of America’s best students are going to law school. He would instead like to see more of the top students going into professions such as engineering and teaching. “Society cannot afford to have such a huge proportion of its best minds going into the law,” he said.

Scalia also elaborated on his recent opinion in the GPS case, United States v. Jones (PDF). The U.S. Supreme Court opinion was unanimous in finding that the police conduct—installing a global positioning device and using it to track a suspect for 28 days—was a search within the meaning of the Fourth Amendment. But the justices split 5-4 on the reasoning.

Since the case was decided Jan. 23, experts have differed over how much protection it will give to shorter-term surveillance and whether the decision would require police to get a warrant. The Volokh Conspiracy blog says the dueling opinions can be read in so many different ways, they are a something of a Rorschach test.

Scalia spoke only for himself and four other justices in his majority opinion when he wrote that the police conduct was a physical intrusion that would have been considered a search within the meaning of the Fourth Amendment when it was adopted. On Saturday, Scalia said the decision was “pretty easy” because the Fourth Amendment has long been tied to trespass and property.

Some commentators have suggested Scalia’s approach was more narrow than that of the four other justices, who instead endorsed the test for a reasonable expectation of privacy established in Katz v. United States.

Apparently, Scalia doesn’t agree. “My opinion didn’t repudiate Katz. It is in addition,” Scalia told the ABA audience. “My approach was much more defendant friendly.”


The initial Web edition of "Scalia Explains Stance on Abortion, GPS Ruling," March, should have identified Ronald Cass as a former Boston University law dean.

The Journal regrets the error.
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