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Since 2008 – Progress Through Politics

Scalia: Activist Judges Responsible for Holocaust

Add yet another reason that Antonin Scalia has made himself an embarrassment to the office he holds, along with any other person that possesses one, small, iota of basic human decency.  Speaking before the Utah Bar Association, Scalia reportedly said:

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.

How many more times will the greatest crime in Jewish history be used to score cheap political points?  Scalia is hardly the first person to so misappropriate the Holocaust to make such points and I doubt he will be the last.

While Scalia is known for vitriol directed against many groups he does not like, this case is particularly egregious.  It makes me wonder what evil he will not blame on those that he deems ‘activist judges.’  Of course, this is only made all the more egregious by his hypocrisy when it comes to ‘judicial activism.’  It seems that the only ‘judicial activism’ he dislikes are those cases of ‘judicial activism’ that affirm the rights of unpopular groups from tyranny of the majority.  He is also willing to use any evidence, no matter how offensive and wrong, to prove his ‘point.’

Scalia roots his philosophy in a professed belief in originalism, along with a dose of deference to the elected representatives of the people.  He has stated he does not believe policy should come from the bench, but from the elected branches.  Anything contrary to this, in his mind, is ‘judicial activism;’ except, of course, when it is not.

Apparently disregarding the will of the elected representatives of the people is okay, and is not ‘judicial activism,’ when it comes to the federal government using its Fifteenth Amendment powers to secure the right to vote for all citizens.  In that case, it is merely federal overreach that encroaches upon the rights of the state and unjustly punishes them for a past that they have long come over.  After all, how else can gutting the Voting Rights Act be explained?

Apparently deciding that the corporation is always right, and making it as hard as possible for causes of action to go forward against corporations, is not ‘judicial activism’ despite the fact that the elected representatives of the people might think otherwise.

No, ‘judicial activism’ is only when judges come to a finding that Antonin Scalia disagrees with.

I have two questions for Justice Scalia:

  • One, you profess a belief in originalism and for what is contained within the Constitution.  Judicial review is mentioned nowhere in the Constitution and the concept was alien to the common law concept of parliamentary supremacy.  It was only with the Supreme Court’s ruling in Marbury v. Madison, more than a decade after the ratification of the Constitution that judicial review was established as a power of the courts.  Therefore, on what basis do assert your power of judicial review?
  • Two, you state that every right that you hold to exist as a matter of law can be found within the words of the Constitution and that judges engage in ‘judicial activism’ when they find rights other than those specifically listed.  How do you reconcile this view with the plain words of the Ninth Amendment, which states:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


And, in closing, I note that no matter how reprehensible I find your statements and your views, and no matter how wrong I find them, you still have a right to hold those views.  That is a right all of us enjoy as Americans.  At the same time, I have the right to tell you just how reprehensible those statements and views are.  I have the right to tell you just how disgusting I find you as a human being at the current moment.  I have the right to tell you that I consider you an embarrassment to humanity.  I have the right to tell you that the time has long past for you to do the honorable thing and resign.


  1. PadreJM

    deprecatory, and unabashedly partisan rhetoric as that of Mr. Scalia is, in and of itself, a national scandal.  The very title of his speech, “Mullahs of the West: Judges as Moral Arbiters,” reaches a height of offensive hyperbole I would be shocked to hear from a municipal judge, let alone a jurist who is charged with hearing the most important legal matters of our day.

    I am not one of those who believes Naziism in general and the holocaust in particular should be taboo in discussions of moral philosophy or politics.  As “Godwin’s law” became more a part of the popular consciousness, its citation often seemed to me to fly in the face of the survivors’ admonition to “never forget.”

    There are legitimate and even essential reasons to remind the populous of a democratic society of the very real dangers of totalitarianism, nationalism, and militarism, and the atrocities to which they can lead, and have led seemingly civilized societies to commit.

    To bandy such references about for purely personal or partisan advantage is inexcusable.

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