Supreme Court Justice Antonin Scalia linked judicial activism to the Holocaust in a recent speech to the Utah State Bar Association.
Scalia, a conservative judge appointed by Ronald Regan in 1986, describes himself as a constitutional originalist.
“I believe that texts should be read to mean what they were understood to mean when they were adopted,” he said at the event, rejecting the notion of the constitution as a living document. Scalia talked about German judges in the 1930’s who interpreted laws in ways that reflected “the spirit of the age.” Problems arise when judges begin making moral decision for a countries citizenry, Scalia says.
“Who in a democratic society should have the power to determine the government’s view of what natural law is?” Scalia asked. “In an open, democratic society, the people can debate these issues.”
Scalia cited several issues – abortion, capital punishment, and gay marriage – that he believes should be decided by elected officials rather than appointed judges.
“I accept, for the sake of argument, that sexual orgies eliminate social tensions and ought to be encouraged,” Scalia said with a bit of sarcasm during his speech. “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.”
Scalia then blamed judicial activism for the difficulties a Supreme Court Justice nominee faces to be approved as a member of the court.
“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.”
Scalia may have a point with this last comment. In 1986, he was approved as a new member of the Supreme Court via a 98-0 senate vote. Widespread worries about an appointee’s political affiliations would make a unanimous approval nearly impossible to achieve today. The most recent Supreme Court appointee, Elena Kagan, for example, was approved in 2010 by the Senate via a 63-37 vote.