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Posted by on Jul 21, 2013 in Law, Politics | 9 comments

Scalia Blames Judges for Hitler’s Holocaust

Another reported statement from Supreme Court Justice Antonin Scalia that suggests he’d really like to be a supreme talk show host using arguments that seem to be designed to shock some to make a point. File this in your Here We Go Again file:

U.S. Supreme Court Justice Antonin Scalia used the twin terrors of Nazi Germany and radical Islam to warn a Snowmass Village audience Saturday about the dangers of judicial activism.

Speaking to a gathering of the Utah State Bar Association at the Westin Resort in Snowmass Village, the longest-serving justice on the nation’s highest court lamented a trend among federal judges, including his colleagues on the Supreme Court, to read and interpret the U.S. Constitution as a “living document” that changes over time.

Scalia described himself as an “originalist” in his reading of legal texts.

But wait: isn’t that itself subject to argument? Has the court since Scalia has been on it indeed delivered some decisions that have been considered it not radical, then quite activist — not just reading the constitution, but some claim twisting its meaning? (Those who like the decisions will angrily say no way, those who don’t agree with say the current court has shown itself to be conservative activists in several ways). There are many who believe the court’s decisions in helping George W. Bush take office and in Citizens United showed an activist court with most assuredly activist judges.

And here’s the quote that makes him sound like he yearns to be a fill in host for Rush Limbaugh:

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.

When in doubt (on both sides) always start making a parallel to Nazi Germany.

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  • The_Ohioan

    Supreme Court Justices should be expected to retire at age 85. Or earlier if fellow jurists become concerned about their mental acuity.

  • Scalia has been so hypocritical with his rulings it’s hard to figure out what his judicial principles even are …

  • JSpencer

    Too bad there isn’t some way we grant him his (apparent) wish to become a talk show host. He’d certainly be capable of doing less harm than he does in his current role.

  • cjjack

    Oh Tony, is there nothing you can’t get entirely wrong? Let’s take a look at what constitutes “originalist” thinking as referenced by the esteemed justice on the topic of women’s suffrage:

    “We understood in 1920 that the Equal Protection Clause meant today what it meant when it was adopted,” he said. “We did what the Constitution required — we adopted the 19th Amendment.”

    I’m going to go out on a limb here and say that if you told the members of the Constitutional Convention that the Equal Protection Clause would eventually be used to justify giving women the right to vote, at least some of them…perhaps most…would think you were making some sort of joke.

    It is hard to argue that women’s suffrage was the “original intent” of the Founders when it wasn’t enacted until a century after most of them were dead.

    That said, they did leave us with the mechanism to enact such a thing – the Amendment process. Which by it’s very existence pokes a rather large hole in the notion that the Constitution is a static, unchanging document. If it were the “original intent” of the Founders to give us an unchanging document, then they would have given us the document with very specific instructions not to change anything.

    Instead, they gave us very specific instructions about what to do when we wanted to change anything. The means to change the Constitution is contained within the document itself.

    Of course, one could make the argument – as Tony does – that what’s really problematic is interpretation of the Constitution as written:

    When judges begin to reinterpret founding documents like the Constitution and make value-laden decisions about individual rights and liberties, Scalia said, they distort the workings of a democratic society.

    How did this guy get on the Supreme Court, again? We are not a pure democracy, and Scalia should be aware of this fact. We are a democratic republic, and one of the facets of our republic is that individual rights and liberties are not up to a vote. When pressed (and when a Constitutional Amendment is a bridge too far) we rely upon judges to…well…judge.

    This whole notion of “activist judges” as a bad thing is a bit absurd, after all. We expect (or at least should expect) all of our branches of government to act and be activists. When the legislative or executive branches overstep their boundaries, it is imperative upon the judicial branch to step in and say “this does not comport with the Constitution that defines our republic.”

    We need you, Justice Scalia, to not just sit there and ruminate upon what the Founders might have thought about this or that moral issue, but to stand as a check against the powers asserted by the other two branches of government. Your job is not an academic one. It is one of action and activism. Are you qualified to rule on things like “homosexual sodomy” and abortion? Maybe not, but then again, how many of our Presidents have been thoroughly qualified to hold that job? The trade off with having citizens run the government is that you might wind up with people who aren’t qualified, and that’s okay. We don’t expect you to be perfect, Tony. We just expect you to do your job to the best of your abilities.

    Now, with regards to the Hitler thing:

    I cannot claim to be an expert, but I spent a good portion of the last year of college knee-deep in the history of Germany leading up to WWII – finishing out my secondary major in history. I think I can say with some authority that if Scalia thinks the problem was “activist judges,” then he needs to shut the hell up about history.

  • sheknows

    I do not take anything he does lightly or find any humor in his actions or statements. That old goat wields too much power and should be shut down.
    I know if we as a people really wanted to get rid of him, we can petition and protest…and not protest like Wall Street protest… but REALLY protest until we get him off the bench. Period.

  • bluebelle

    First of all, every debater knows that it is a sign of desperation to bring up Hitler’s despotism.
    Secondly- agree with cjjack–

    Wasn’t the decision to desegregate our schools in Brown v Board of Ed considered activist judging at the time of the decision?? And should we have clung to early decisions that treated blacks as the property of the landowners who paid for them?
    Of course we no longer resemble the society of slaves, house-bound women and colonial planters that we were at the time of the signing of the Constitution.
    There was enough disagreement among the Founders to support the assertion that at
    least SOME of them thought that it should be a living breathing document. I think the very people who want to take it literally are those who read the Bible literally. I hope the next judge appointed to the court is a pragmatist and not an originalist.

  • SteveK

    My advise… Lay down with the seals.

  • Kenneth Almquist

    Although Scalia’a Nazi comments were the most inflamatory part of his speech, I disagree with the rest of his speech as well. The article Joe links to says:

    Scalia was nominated to the Supreme Court by President Ronald Reagan in 1986 and was approved by the Senate, 98-0. Such a result would be impossible in modern-day Washington, D.C., where a judicial nominee’s integrity and legal credentials take a back seat to his or her political leanings.

    “I’m not happy about the intrusion of politics into the judicial-appointment process,” Scalia said. But the politicization of the judiciary is a natural outgrowth of the work that today’s judges are doing.

    “If you’re in a system where the judges do the constitutional draftsman’s work, I think you have to accept the politicization of the appointment and confirmation process,” he said.

    The problem with this is the timeline. Brown v. Board of Education, which struck down “separate but equal” and is the defining example of the judicial activism of the Warren court, was decided in 1954. Roe v. Wade, which legalized abortion, was decided in 1973. It was 32 years after Brown and 13 years after Roe that the Senate confirmed Scalia unanimously.

    As I recall, the politicization of the judiciary increased dramaticly because conservatives pushed for judges who would give results more to conservatives’ liking. Democrats pushed back against Bork but let Scalia go through. You can argue that conservatives were justified in trying to stack the courts, or that Democrats shouldn’t have engaged in a political battle to stop them, but the point is that these were, in both cases, decisions that people made. Saying that the politicization of the judiciary is “a natural outgrowth” implies that is just happened, with no one making any decisions about whether to politicize the judiciary. I think that’s wrong.

  • JSpencer

    Right you are Barky, “hypocrite” is the key word. The guy is truly unfit for the position he holds.

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