Scalia reportedly linked judicial activism to the Holocaust

The Justice said that judges in Nazi Germany wrongly interpreted laws according to “the spirit of the age"

By Jillian Rayfield
Published July 21, 2013 8:50PM (EDT)

Supreme Court Justice Antonin Scalia reportedly linked judicial activism to the Holocaust, arguing that judges in Nazi Germany wrongly interpreted laws in line with the "spirit of the age."

Scalia was speaking in Colorado, at a gathering held by the Utah State Bar Association in Snowmass Village. The Aspen Times reports:

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.

This is in line with Scalia's originalist view of the Constitution, which, as he put it in Colorado, means that he believes "that texts should be read to mean what they were understood to mean when they were adopted."

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."

Jillian Rayfield

Jillian Rayfield is an Assistant News Editor for Salon, focusing on politics. Follow her on Twitter at @jillrayfield or email her at

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Antonin Scalia Islam Judicial Activism Nazi Germany Supreme Court