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Juris Prudence

On Wednesday, the Supreme Court discussed severability — whether overturning the individual mandate in the health care reform law would require overturning the entire law. Justice Antonin Scalia scoffed:

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? 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.

There’s just two problems with this. The “Cornhusker kickback” is only called that in conservative rags; it isn’t a kickback at all. But the bigger problem is that it was not in the final bill at all. Democrats removed the deal in the house. Contrary to Scalia’s assertion, Congress did “pass it without that”.

Can it be that Scalia has internalized false conservative arguments against the law? I thought justice was supposed to be blind, but that doesn’t mean not even knowing what’s in a law you are judging.

Scalia bristled at the idea that someone would have expected the Supreme Court justices to, you know, actually read the law, or even have one of their clerks read it:

You really want us to go through these 2,700 pages? [Laughter.] And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?

Actually, yes, I do expect the Supreme Court to at least read a law before they judge it.



  1. Bard wrote:

    Can’t stand Scalia

    Saturday, March 31, 2012 at 7:02 am | Permalink
  2. TENTHIRTYTWO wrote:

    Come on, they can’t be expected to spend a lot of time reading when all that’s at stake is the health insurance of millions of people. Get your priorities straight, IK. 🙂

    Saturday, March 31, 2012 at 7:15 am | Permalink
  3. Don wrote:

    I’m with 1032 and I’m with Bard. I’m saddened by Scalia’s comments, but not surprised. The partisanism on the Supreme Court has been clear for some time, but this takes the cake. I’m also with IK – yeah, I expect them to be informed on the case before the court and I expect them to not make asses of themselves.

    Saturday, March 31, 2012 at 9:26 am | Permalink
  4. just me wrote:

    I thought I was hearing things when he said that!

    Saturday, March 31, 2012 at 10:39 am | Permalink
  5. Duckman wrote:

    No one in congress read the whole thing either -_-

    Saturday, March 31, 2012 at 12:58 pm | Permalink
  6. Michael wrote:

    Yes, but no one in Congress is judging whether or not the text of the law violates the Constitution.

    Saturday, March 31, 2012 at 2:51 pm | Permalink
  7. Duckman wrote:

    No, but they voted the law in in the first place

    Saturday, March 31, 2012 at 8:48 pm | Permalink
  8. Michael wrote:

    Doesn’t matter. No one in Congress reads any bill in its entirety. That’s why they have committees to dig into the details and report back to the body as a whole. Your point was nothing but a red herring.

    Sunday, April 1, 2012 at 12:16 pm | Permalink
  9. PATRIOTSGT wrote:

    So, what your saying Michael is if you were a congressmen and someone brought up a bill and gave you 3 soundbytes on it, you’d vote to make it law? That seems like a cop out excuse to me. I remember Nancy saying “we have to pass this thing to see whats in it”. Now, I’m not against healthcare for all, but this bill has alot of problems. I’d like to think that we the people should expect better then this. Duckmans’s point is not a red herring, it’s a legitimate concern and if your not concerned then you should evaluate your level of critical thinking and determine whether you are just blindly following the crowd.
    The term “no one in Congress reads any bill in it’s entrety” is not based on fact but assumption. So I’ll assume that there might be “some” who do and those might not vote for flawed bills even if the idea was good. Matter of fact, that scenario does happen quite often.

    Sunday, April 1, 2012 at 1:33 pm | Permalink
  10. Michael wrote:

    Red herring: “A red herring is a … piece of information which is … distracting from the actual issue.”

    The post and the discussion were about how the integrity of the judicial branch has been called into question. IK’s post was about how Scalia’s comments illustrate a somewhat cavalier and flippant attitude regarding the responsibilities of what was supposed to be the apolitical branch of government. Duckman’s contribution was, “Oh yeah, well Congress does it, too.” Please tell me what that had to do with the actual issue that was being discussed.

    While my use of absolutes was hyperbolic, I stand by (a slightly more temperate version of) my previous point: “Very few members of Congress read most bills in their entirety.” That is, for any single bill, only a few people will have read it fully. And each member of Congress will have read only a few bills in their entirety. The vast majority of the work is delegated to committees and aides. That is simply the nature of the legislative process.

    Sunday, April 1, 2012 at 6:03 pm | Permalink
  11. PATRIOTSGT wrote:

    Agreed – it was not precisely related to the discussion. It remains a valid point, albeit for a different discussion. Perhaps if they had read the bill before passing it, they would have realized the language used would end up with a court challenge. If they had just changed it to a tax, there would be no discussion.
    I do understand how the legislative process currently works, however I believe it needs improvement.

    Sunday, April 1, 2012 at 7:35 pm | Permalink
  12. TENTHIRTYTWO wrote:

    Pelosi’s actual non-quote-mined comment was:

    “But we have to pass the bill so you can find out what is in it, away from the fog of controversy.”

    She was referring to the paranoia machine attributing nonsensical things to the bill (a.k.a. death panels) vs what the bill actually does. This is clear when the last part is included, but for some reason it is often left out.

    I can’t imagine why.

    Sunday, April 1, 2012 at 9:21 pm | Permalink
  13. rk wrote:

    Perhaps they wanted it to end up in a court challenge?

    Monday, April 2, 2012 at 11:05 am | Permalink
  14. JC for Pennies wrote:

    Gawd, there must be a better way to get much needed and good health care reform in this country. The European countries seem to have done it so easily with their different versions of single-payer. Why can’t we? Because of the effin’ so-called HEALTH insurance industry, and their influence over our lawmakers. And now our court system (“Corporations are people”). God Bless America? More like God help America. It’s pathetic!

    Tuesday, April 3, 2012 at 5:49 am | Permalink
  15. hshaw47 wrote:

    Amen, JC.

    Tuesday, April 3, 2012 at 6:45 pm | Permalink