Associated Press
Artist rendering of Paul Clement arguing in front of the Supreme Court yesterday.
It's not fair for anyone to expect Supreme Court justices to become experts in every area of every law that comes before them. There are simply too many cases, spanning too broad a legal spectrum.
That said, it's not unreasonable to think justices should be relatively well informed about the basics of health care law, since literally tens millions of Americans are counting on them to make a fair and reasoned decisions. It makes displays like these rather embarrassing.
There was in a strange moment in today's severability argument at SCOTUS. Justice Antonin Scalia referred to a deal that Sen. Ben Nelson once made, to make a hypothetical point about what could take down the law.
"If we struck down nothing in this legislation but the -- what's it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay?" asked Scalia, talking to Paul Clement. "When we strike that down, it's clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can't be right."
In this case, Scalia doesn't seem to realize that the so-called "Cornhusker kickback" wasn't included in the Affordable Care Act; it was taken out before passage. Scalia probably heard something about it on Fox News, assumed it was true, and internalized his party's talking points. More than two years later, the conservative justice is still parroting a claim that has no basis in fact -- indeed, he's practically boasting about it during Supreme Court oral arguments.
Scalia is bringing to the discussion all the sophistication of a House freshman appearing at a Tea Party rally.
And while this was a glaring example of policy ignorance, the larger issue is that the Scalia and other justices have routinely struggled this week with the basics of health care economics and the details of the law itself. Henry Aaron highlighted a question from Alito yesterday that was "painfully detached from an understanding" of the underlying issue, or even "how insurance works." Paul Krugman added today, "Astonishingly, many of the justices appear not to understand that health care isn't like the market for cars or broccoli."
It's problematic enough that Americans lack confidence that Supreme Court justices will be objective and fair; it's worse that we can't count on justices to do their homework, either.
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During the halcyon days of yesteryear, justices had clerks- highly learned ones- to do much of the heavy thinking for them.
Now, apparently, otherwise unemployable relatives get the jobs. . .
One word describes this who procedure FARCE.
So the "best legal minds" cannot be bothered with the due diligence of actually understanding what the Affordable Health-care Act is all about, exactly why are they on the court?!?
This is yet another glaring example of the dumbing down of Americans.....Sniff, sniff, sniff
The case of Trayvon Martin and discussing and providing solutions in our justice system is not the only thing that should be done either. There is much more that can be done to really for once help these people that need it. Because the justice system is not the only thing about it, but to finally take a good look at why these things are happening and finding those good answers and solutions to fix the problems. And there is many people out there that do have good answers and solutions.
As an aside, the illustration of the court proceedings makes Clarence Thomas look almost as if he's asleep - nice work if you can get it - warm a bench for life without having anything asked of you, except to cast conservative vote after conservative vote. In any case, Scalia should be thoroughly embarrassed, but apparently doesn't have the conscience to realize that.
I was wondering about that. If nothing else, Justice Thomas looks to be completely disengaged from the oral arguments. Since he has not yet asked one question, unlike all the other justices, I guess he doesn't worry about it. All the other justices look like they are paying close attention.
Well, far be it from me to defend Scalia generally, or to suggest that he's going to vote to uphold, but I think you (and other commentators, e.g., TPM) are missing the point Scalia was making. Bear in mind this came up during the severability argument; what he was trying to suggest was that the argument that the whole law must be stricken if any portion of it is invalid "can't be right," and he was using the cornhusker kickback issue to illustrate that. So it really wasn't significant to his question whether the cornhusker kickback remains part of the law. It could even be argued that he chose it because it is not part of the law; that's what made it a hypothetical, rather than a real issue.
....so he's arguing FOR severability, right? You can take down the individual mandate without taking down the whole law?
retr: I think I get your point,but does he actually know that the "kickback"is not in the ACA.
This is truly obscene. To have Scalia railing against a law he hasn't even read, having been a guest speaker at official Koch Brothers political events - the same people funding these lawsuits - just obscene. If you feel the same way I do about this and about the (frankly, even more) obscene voter suppression laws passed across this country - disenfranchising 21 million voters too supposedly prevent the horrifying 72 actionable cases of voter fraud that were prosecuted from 2002 through 2007 - then you had better DO SOMETHING other than reading this blog. Help a neighbor register to vote - do something - or we go down the tubes as a people.
That is pretty funny Chi-town. Actually I don't think very many people have read it - judges, legislators, tv/radio hosts, etc. I still get a chuckle out of then Speaker of the House Pelosit saying “But we have to pass the bill so that you can find out what is in it,". Granted, I'm sure she meant find out what is really in it versus what you may have heard is in it....but it still sounds funny.
Also, I would love to have a big chunk of the printing supply business in D.C. All the legislation there seems to be hundreds of pages long.
Hahaha! So it's ok for congress to pass the bill without reading it but you expect the supreme court to read it?
I'll paraphrase Nanci Pelosi, "I guess the supreme court will just have to strike it down to know what is in it."
To Rambeaux, yes, that's how I read it. Note that it's not necessarily a good sign; he may believe that it would be harder to get a majority if it meant striking the whole law, so he wants to make sure that the mandate gets stricken, at least. Or he could just have been busting chops.
To Joca41, it's hard to say for sure what he knew, but it would actually make a better question if he knew that it wasn't in the law.
In this case, Scalia doesn't seem to realize that the so-called "Cornhusker kickback" wasn't included in the Affordable Care Act; it was taken out before passage.
So, are you saying these kind of kickbacks are OK or not? Your matter-of-factly statement makes me think that "buying" votes from Congresspeople is OK. This political practice is nothing more than a bribe - except instead of cash the legislator gets a specific service or law for his state/district in exchange for his vote. It happens all the time, but it doesn't seem to be illegal. Just because it "was taken out before passage" doesn't make it right. AND it shows that some other politicians pushing for this bill attempted it. Why does this "practice" along with "dog ear" amendments seem OK to most folks?
And I'm still looking at the severability issue and thinking that it's all of a piece: if the right wing of the Court succeeds in killing the individual mandate, they have to go for the whole ball of wax, no severability.
Because if the mandate goes, the insurance companies are in a real ugly bind: the mandate is in there to save them from adverse selection. The moment the Court strikes down the mandate by itself, their stocks will all crater. Every Member of Congress will be looking at a locust swarm of insurance lobbyists screaming for something to replace the mandate.
Of course, the House will try to strike the whole of the PPACA, which will be great election-year fodder because pretty much everything but the mandate is popular. And since that has a snowball's chance, another "repeal everything" will be DOA at both the Senate and the President. Meanwhile, the Senate will be trying to do the simple technical fix (per-capita tax and rebate) that has the exact same effect but is unquestionably Constitutional -- but they'll be filibustered by the Hordes of Norquist.
And the lobbyists will be screaming. Eventually someone in the Senate will crack under the pressure and the the technical fix will pass -- only to be DOA in the House.
And the lobbyists will be screaming. One of the biggest industries in the country will be looking at financial disaster as long as there's deadlock in Washington. Do they bet the farm on putting Romney into the White House with control of both the House and Senate (so they repeal the PPACA altogether) or go full-up on helping Democrats get enough seats to break the deadlock?
Either one might solve their predicament, but the middle ground is a killing field.
Decisions, decisions.
Why do Americans stand by and let a handfull of billionaires strip you of your rights and freedoms and steal your country from you? You number in the millions, surely you have more power with your votes then their billions to a selective few. They are powerless if you go out and vote and stop whoever they want in positions of power from achieving that power over you.
Because too many United States citizens are intellectually limited, apathetic, easily led, and believe that politics is beneath them.
I'll go back to H. L. Mencken's quote: "Nobody ever went broke underestimating the intelligence of the American public."
You're certainly correct that people, working together, could use their most powerful weapon--the vote-- to overcome the advantage the wealthy enjoy in the political process. But they'd have to think for themselves, vote in their own best interests, and get up off their big, fat rusty dusties and become involved. That's WAAAAYYY too much work for far too many people.
What else would we expect from the son of a Mussolini worshipping Mafioso? If you wanted smarts on the Supreme Court it would be hard to imagine real intellect born of that odious combination in his paternity.
In reading these comments, I am now truly sure that there is a learning curve within the United States. Justice Antonin Scalia was simply channeling the well known liberal, Nancy Pelosi, who said, "we have to pass the health care bill so that you can find out what is in it," from when the Democrats were pushing through a bill that was little more than a lie and was said to only be around 2000 pages.
If a Justice on the Supreme Court is expected to read the document to pass a decision on the Constitutionality of the law, shouldn't the people who wrote and voted on it have been given the time to actually read the document?
And on the Cornhusker Kickback, the provision that gave Nebraska $100 million to pass the PPACA or Patient Protection and Affordable Care Act did contain the provision. It passed because the Cornhusker Kickback was actually in the bill as passed. Health Care and Education Reconciliation Act of 2010 passed and reversed the kickback. The PPACA would not have passed if it were not for the kickback.
Why? The people of the US were speaking out loudly. And I am not talking about the minority. Between 60%+ to 80%+ of Americans were against the PPACA before it was passed.
While I find it funny that even today, so close on a timeline of where the PPACA passed into law, the person who was damaged the most by it can not remember the out cry from his on state to have it taken out of the bill. Strange how the rewriting of history can happen so quickly.
I think what Justice Scalia said was very much on mark. If the people who are to vote on a bill are not given the time to read it, why should he take the time to do so. I more than agree with that. Maybe if you do not agree, my question is why not? Did you read it through in the 30 something hours before the vote. Oh, wait. They had a non published version that had changes from the published version that they voted on.
Getting the picture yet? You were ok with them voting on it, but not with a Justice being just a caviler about what the American People think and wish? Bravo to the Justice.
J Albert
Hey a few months late, but now that we know Obamacare is a go started looking at the costs my company is going to incur because of this act.
Tachnically maddow is wrong, but then we can't expect TV personalities, who sit there every night struggling to come up with pithy quotes or news their minions want to hear experts in every area that they talk about. Yes the Cornhusker kickback was in fact included and voted on. She's in fact cornfusing the ACA from the actual law the Supremes heard arguements on.
Yeah for maddow showing that stupidity is still alive and well.