Justice Antonin Scalia routinely gives speeches where he lambastes a caricature of liberal judges. In this caricature, liberals believe “[t]he Constitution . . . has to change with society, like a living organism, or it will become brittle and break.” And Scalia adds that you would have to be an idiot to believe that.’” He’s also given an Islamophobic title to one of his regular speeches: “Mullahs of the West: Judges as Moral Arbiters.” Yet, when he delivered this talk to the Utah State Bar on Saturday, he reportedly crossed a new line — he compared judges he disagrees with to the judges that presided over the Holocaust.
Though the full context of Scalia’s comparison is not entirely clear, the Holocaust reference was reported by the Aspen Times:
Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, “the most advanced country in the world.” One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected “the spirit of the age.” When judges accept this sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble.
There were, of course, many causes for the rise of Nazism in Germany — not the least of which was desperation born out of the Great Depression and exacerbated by unfavorable terms dictated by the Treaty of Versailles. Germany also had the misfortune of seeing a uniquely evil leader exploit this desperation, something that thankfully did not occur in most other nations shook by the Depression. None of these conditions exist in the United States today, nor does the American judiciary appear the least bit poised to enable such a leader’s rise to power — no matter how worthy of condemnation the Roberts Court may be.
Setting aside the strange, and not fully reported, reference to the Holocaust, the bulk of Scalia’s speech treaded familiar ground. The main thrust of Scalia’s speech was that “unelected judges” should not make “value-laden decision[s]” for America as a whole.
This is decent advice for judges — it’s also not advice that Scalia has taken himself. Scalia provided the fifth vote necessary to neuter a key prong of the Voting Rights Act earlier this year. He voted to repeal the Affordable Care Act in its entirety. He joined the Court’s decision in Citizens United permitting unlimited corporate funds to be spent influence elections. And he’s consistently voted to narrow laws protecting workers and to create new tools for corporations seeking to immunize themselves from the law.
So Scalia’s right that American judges are too prone to impose their views on the law. He just needs to look in the mirror to find one of the leading culprits.