Report: Scalia Approaches Godwin's Law on Judicial Activism

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Eventually, as Godwin's law scholars are well aware, any online discussion will produce a comparison to Hitler or the Nazis. Supreme Court Justice Antonin Scalia reportedly expanded Godwin's reach to Snowmass Village, Colorado, on Saturday by dropping what sounds like a somewhat oblique reference to Nazi Germany to drive home a point he was making to the Utah State Bar Association against what opponents refer to as "judicial activism." 

His talk, subtly titled, "Mullahs of the West: Judges as Moral Arbiters," shares a title with a headline-grabbing speech the justice gave in North Carolina last month. But unless everyone missed it the first time around, it looks like Scalia's talk in Colorado might have opened a bit more provocatively now that the Supreme Court's big decision on the Defense of Marriage Act is public. Here's what he said, according to the Aspen Times report on the otherwise overlooked 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.

Scalia calls himself an "originalist," which he defined this weekend as believing that "texts should be read to mean what they were understood to mean when they were adopted." His pretty well-known frozen-in-amber take on constitutional interpretation pits him against anyone, including his fellow Supreme Court justices, who would read the Constitution in the context of changing times and societies. His ire for anything that he believes whiffs of judicial intervention on a moral or societal issue was in full force during his "argle bargle" dissent against the Supreme Court's decision to strike down part of the Defense of Marriage Act (but not, interestingly, during the court's decision to partially dismantle to Voting Rights Act, a decision he signed on to). Here's more from the Aspen Times, on what Scalia's talking about: 

Scalia cited numerous issues that have been thrown to the courts — a woman’s right to an abortion, society’s right to execute someone for a crime, whether “homosexual sodomy” ought to be allowed — and claimed that judges are unqualified to answer them. Medical doctors, engineers, ethicists and even “Joe Six Pack” would be just as qualified as a legal professional to settle some issues that have come before the high court.

Then, Scalia pulled out what, based on repetition, might be one of his favorite jokes:

"I accept, for the sake of argument, that sexual orgies eliminate social tensions and ought to be encouraged,” he said, earning a few laughs from the Utah lawyers. “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." 

Unlike last month's very similar speech in North Carolina, which appeared to show the justice's hand on the then pending DOMA decision by the court, Scalia's reported remarks last weekend have gone pretty under the radar, partially because the exact wording of his reported Godwin moment doesn't seem to be out there yet. The Aspen Times report, which does not include a transcript, is the only original account of the speech we've seen so far. 

This article is from the archive of our partner The Wire.