Scalia's Mendacious Coda

Blaming the Holocaust on judicial activism is only the latest symptom of Scalia's profound derangement, but his derangement typifies conservatism morebroadly.

Part 13 of the series, "The Structure of Lies in Conservative Jurisprudence"

I had intended to be done with Scalia, but as my posts on him were awaiting publication, he pulled another stunt worth taking note of. As reported in the Aspen Times Scalia apparently blamed the Holocaust on “judicial activism”:

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.

Of course, as Think Progress notes, there were some other things going on in Germany at the time:

There were, of course, many causes for the rise of Nazism in Germany — not the least of which was desperation born out of the Great Depressionand exacerbated by unfavorable terms dictated by the Treaty of Versailles. Germany also had the misfortune of seeing a uniquely evil leader exploit this desperation, something that thankfully did not occur in most other nations shook by the Depression. None of these conditions exist in the United States today, nor does the American judiciary appear the least bit poised to enable such a leader’s rise to power — no matter how worthy ofcondemnation the Roberts Court may be.

And Scalia's been giving a Holocaust-free version of this speech previously—titled, in a jaw-dropping act of projection “Mullahs of the West: Judges as Moral Arbiters,”—which, as pointed out in Slate amply demonstrates Scalia's profound ignorance and confusion regarding morality and its role in American law—it's decidedly secondary, which is why the cleverer anti-gay bigots (cleverer than Scalia, at least) have shifted their focus from “yuck!” to bogus claims of harm.

But what caught my attention was this:

His chief contention, which he delivered with occasional humor, was that judges are not policymakers and should leave policy decisions to elected lawmakers, who answer to the citizenry.

“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.”

But, of course, repealing anti-gay laws has nothing to do with encouraging orgies. If a judge can't keep his sexual fantasy life out of his professional decision-making, he simply doesn't belong on the bench. It's just as simple as that.

Of course Scalia is not alone in this. But he is uniquely demonstrative and open about it. Which is why he ought to be uniquely singled out. But the underly mechanism, much more widely shared, requires our understanding as well. As the Slate article makes clear, moral arguments in US law generally get paired with arguments of harm. This fact reflects the argument of John Locke that civil laws ought to do just that, leaving religious and moral questions up to whichever church one chooses to affiliate with.

But conservatives just can't abide that, and Scalia's sex obsession typifies what's going on with them: their morality is intensely influenced by feelings of disgust (minged, no doubt, with attraction as well). Social psychologist Jonathan Haidt (whose ideas I discussed here at Open Left back in 2010) has argued that liberals just don't get conservatives, that conservatives respond to a broader range of moral motivations than liberals, who focus primarily on what are known as the moral domains of harm/care and fairness/reciprocity. Conservatives, in contrast, show equally high levels of concern for three other domains: ingroup/loyalty, authority/respect, and purity/sanctity, which he says is “shaped by the psychology of disgust and contamination”. The problem I have with Haidt's work and these three domains is quite simple: unlike harm/care and fairness/reciprocity, they have clear limits to how far they can be generalized—much less universalized. They are, in fact, characterized by being anti-general and quite specific—which makes them all much more like prejudices than like principles.

This is not to say that Haidt's ideas aren't worth exploring, but his uncritical approach to conservative morality has costs as well as benefits—and one of those costs is swallowing prejudice whole. Which is precisely what Scalia would have us do. He is outraged that we are not outraged. And while of course it is true that everyone is subject to a bit of projeciton every now and then, it's the very assymmetry of conservative moral systems which makes projection a much more profound and dangerous problem for them than it is for liberals.

Put simply, Scalia thinks “You've got cooties” is a convincing legal, moral and political argument. And by Haidt's criteria, conservatives in general agree. But it's even worse than that, since “You've got cooties” is not even an argument making gay marriage synonmous with orgies, for example. It's not an argument, you see. It's what Haidt calls a “moral intuition”. And that's the ultimate point to be made about Scalia here: he's not even making a terrible argument. He's simply expressing his personal disgust—a disgust that so overwhelms him, it renders him incapable of making arguments, making sense, or even just keeping up the appearance of having a judicial temperament.

The asymmetrical nature of conservative morality is, in a sense, the underlying structure which continually feeds into all the more particular lies which permeate conservative thinking generally, and conservative judical thinking in particular. Scalia helps draw attention to this by his extemism and immaturity, but it's just as true of smooth operaters like John Roberts as well.

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