(ht The Long Goodbye) Antonin Scalia was appointed to the U.S. Supreme Court by Ronald Regan. Although the appointment at the time drew little controversy, in the intervening years he has drawn plenty to make up for that. If the Supreme Court was once the most staid, dignified branch of government, Scalia, who comports himself like a Dan Brown villain, treats his colleagues rudely and has violated the ethics of the Court. So really, now that Scalia has gone Godwin, I can only wonder what took him so long.
According to The Aspen Times, Scalia delivered a speech to a gathering of the Utah State Bar Association entitled “Mullahs of the West: Judges as Moral Arbiters.” That the title was apparently not intended to be ironic, does make me wonder about the reputed intelligence of a man whose views as a justice are shaped by the Roman Catholic Church.
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.
The Long Goodbye notes that interpreting “the law in ways that reflected ‘the spirit of the age’ ” is not one of the factors to which historians typical credit the rise of Nazism.
And of course there is the general conservative tendency to bend or rewrite history. The rise of Nazism in Germany has been well documented, its roots in the consequences and reaction to the Treaty of Versailles, a nationalism and nativism making antisemitism a large part of the appeal of Nazism. Once Hitler became chancellor (prime minister) he and the Nazi party tried to destroy any possible rivals to his position, rearmed Germany, and launched a campaign of violence against the Jews. He became the dictator by burning the Reichstag building and blaming the communists. The general public, or enough of them anyway were worked up into a state of fear and hysteria allowing Hitler to suspend civil rights. No court rulings required.
I would suggest that interpreting the law according to the spirit of the intellectual milieu in which one resides is inevitable and Scalia’s interpretation of the law reflects closely the rise of conservatism in the United States of America in the late twentieth century. We might as well gouge out our eyes because I heard Hitler had two of them.