Justice Antonin Scalia (March 21, 2014)
Justice Antonin Scalia (March 21, 2014) (Rick Kopstein)

In a televised conversation at the National Press Club on Thursday, Justices Antonin Scalia and Ruth Bader Ginsburg were asked what amendment they would make to the Constitution if given the opportunity. Scalia said he would amend the amendment provision to make amendments easier. Ginsburg said she would add the equal rights amendment.

“I certainly would not want a constitutional convention,” Scalia told moderator Marvin Kalb. “Whoa! Who knows what would come out of it?” But, he explained, he once calculated what percentage of the population could prevent an amendment to the Constitution and found it was less than 2 percent. “It ought to be hard, but not that hard,” Scalia said.

The failure of the push to add the equal rights amendment, Ginsburg noted, was an example of how difficult the amending process is. That amendment, she added, “means that women are people of equal stature before the law. I think we have achieved that through legislation but legislation can be repealed, altered. But that principle belongs in our Constitution. It is in every constitution written since the second world war.”

The two justices fielded a number of questions that focused mainly on the meaning of the First Amendment, particularly freedom of the press. They differed on whether the landmark New York Times v. Sullivan libel decision was correctly decided, with Scalia saying no, and Ginsburg, yes.

Kalb unsuccessfully tried to get the justices’ opinions on whether the government’s surveillance program violated the Constitution, specifically the Fourth Amendment prohibition against unreasonable searches and seizures. He asked if data stored in computers or in the cloud was “effects” within the amendment’s protection for persons, houses, papers and effects. When Scalia said he thought so, Kalb added, “But doesn’t it follow logically” that the government is in violation of the Constitution?

Scalia answered no “because your freedom is not absolute. Boarding a plane, a person can put hands all over your body. That’s a terrible intrusion but given the danger, the risk, it could be reasonable.” Ginsburg said, “An argument can be made certainly, but it’s not an argument either of us can answer. We don’t get questions in the form you pose them. We get a concrete case.”

When asked if any case “rattled” their longtime friendship, Ginsburg mentioned the dispute over exclusion of women from Virginia Military Institute. “I think we were most at loggerheads over the VMI case,” she said. “We went I don’t know how many rounds.” Scalia, the only dissenter, said, “We did, back and forth.”

But Scalia, with the clock ticking on that term’s end, went out of his way to give her his “penultimate” dissent before circulating it to the rest of the court, Ginsburg recalled. “He said he wanted to give me as much time as he could to deal with it. I went off to my judicial conference with it. It ruined my whole weekend. But he gave me the extra days.”

And on the differences in their writing styles? “People might regard my opinions as dull, boring,” Ginsburg said. “Yours,” she said, referring to Scalia, “are really jazzy at times.”

Contact Marcia Coyle at mcoyle@alm.com. On Twitter: @MarciaCoyle.