The invocation of the Nazism in political debates is one of my biggest pet peeves because such invocations often demonstrate a complete lack of historical knowledge and understanding as well as a lack of skills in rational argumentation.

However, since Antonin Scalia is an ignorant troll, I can't say that I was surprised to hear that he made such a historically unsound allusion at a gathering held by the Utah State Bar Association. The Aspen Times reported on the event:



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.

First of all, what does he mean by "the most advanced country in the world"? Germany had been a leader in technology and manufacturing since its unification in 1871; however, after World War I, the Germany economy had been in a prolonged depression. In 1932, before the rise of the Nazi Party to power, the unemployment rate hovered around 30%. The Weimar Republic also experienced severe hyperinflation . It had, additionally, always suffered from a degree of political instability because only three major parties--the Social Democratic Party, the German Democratic Party, and the Centre Party--were resolutely pro-republican, and the German Democratic Party was almost nonexistent by the end of the 1920s. Weimar Germany had a strong intellectual and scientific culture and many prominent universities, and I think that properly falls into the definition of "advanced." But to call Germany the "most advanced in the world," one needs evidence or, at the least, clear definitions.

Scalia, though, seems to be referring to post-1933 Germany as the "most advanced country in the world" at the time. Apparently, then, democratically-elected legislatures don't factor much into his definition of "advanced," and his definition is narrowly focused on technology and manufacturing.

He also seems to be saying that the Holocaust--or maybe just the development of the totalitarian NSDAP state--was a result of jurists interpreting the law within the "spirit of the age."

During the Third Reich, all professional associations involved with the administration of justice were merged into one corporatist body under heavy state influence: the National Socialist League of German Jurists. In April 1933, Hitler passed a law (Law for the Restoration of the Professional Civil Service) which purged Jewish and Socialist judges, lawyers, and other court officers from their professions. The Academy of German Law advocated for the removal of any "Jewish influences" on the law. Considering the father of the German constitution--Hugo Preuss--was Jewish, the constitution was pretty much too "Jewish" for the Third Reich. Moreover, judges were enjoined to allow "healthy folk sentiment" guide their decisions. Such developments stemmed from heavy state pressure, not just the will of individual judges acting within what they saw as the "spirit of the age." And that "spirit of the age" bore heavy state influence as well.

Because Hitler was not happy with the "not guilty" verdicts rendered by the Supreme Court in the Reichstag Fire Trial, he ordered the creation of the People's Court in Berlin in 1934, to try treason and other important "political cases." The People's Court was an extra-constitutional kangaroo court that condemned tens of thousands of people as "Volk Vermin" and thousands more to death for "Volk Treason." The People's Court was integral to the enactment of state terror.

So, Scalia, do you define "judicial activism" as the formation of a national corporatist body for all jurists, purged of all of the state's ideological opponents and religious/ethnic minorities, and the creation of an extra-constitutional kangaroo court used to try ideological opponents? I'm going to guess no. Rather, "judicial activism" seems to mean upholding the principle of equal protection under the law for LGBT individuals. (Oh, and by the way, Nazi Germany hated them, too.)

However, there's more to this uh...stimulating...speech by Scalia:



He also explained that he believes judges should not rule on issues like abortion, a state’s right to employ the death penalty, and “homosexual sodomy.” “I accept, for the sake of argument, that sexual orgies eliminate social tensions and ought to be encouraged,” he said, according to the Aspen Times. “Rather, I am questioning the propriety, indeed the sanity, of having a value-laden decision such as that made for the entire society by unelected judges.”

I am thankful for the fact that I don't have that strong of a visual imagination because putting "Scalia" and "orgies" together is mentally scarring. Who knew that he had a pro-orgy side to him?

Scalia argues that issues like abortion, the death penalty, and gay sex are too "value-laden" to be decided by the courts. The death penalty, as I see it, clearly falls into the definition of "cruel and unusual punishment," so its constitutionality should be questionable under the Eighth Amendment. However, I don't buy Scalia's overarching argument that some issues are so "value-laden" that they must be taken out of the courts and decided only by elected legislators. Politics is morality writ large. ALL POLITICAL DECISIONS ARE VALUE-LADEN. The Constitution itself is a value-laden document.

During Independence Day weekend, Linfield College professor Nicholas Buccola wrote an eloquent article in Salon, entitled "Scalia Fails to Grasp True Democracy." In it, he contrasted the thinking of Frederick Douglass and Antonin Scalia:



According to Douglass, majoritarian democracy lacks a sound “philosophical theory” at its foundation. It is not “genuine” in the sense that it lacks any justification for itself beyond power. The fundamental flaw in the majoritarian conception of democracy, Douglass wrote, was that it violated “the only intelligible principle” on which democracy can be based: the equal dignity of each human being. “The right of each man to life, liberty and the pursuit of happiness,” he concluded, “is the basis for all social and political right.”

On social issues, Scalia argues that the majority has the right to vote away the rights of the minority in defiance of that core democratic principle of "the equal dignity of each human being." However, we can't even credit Scalia for consistency. His respect for majoritarianism only goes so far. He overrode the will of the democratically-elected legislature and executive in the Voting Rights Act decision, and his belief in the unconstitutionality of the Affordable Care Act also defied the will of the elected majority. One wonders whether Scalia has regard for democracy at all. I think we all know the answer.