Antonin Scalia: “Well, Don’t Obligate Yourself to That.”

If there is any good news to come from the Supreme Court throwing out “Obamacare” (as even the President is now happy to describe it) it is that it will tear open one of the last great delusions of American life. No, not that “reality TV” isn’t real, but rather that the Supreme Court is the one branch of the government above and immune from politics. Only the naive have continued to embrace this ninth-grade civics mirage until now.

Despite the tone and hysteria of last week’s oral arguments, I hold out my own naive hope that this Roberts court will not throw out — on a micro-fiber fine re-interpretation of established law — the individual mandate and thus the economic heart of the Affordable Care Act. The justices have already voted, so we’re merely in the window prior to their formal decision in a couple of months. But I have a wisp of cockeyed optimism drifting through my alleged brain.

Having digested a bombardment of punditry over the past week my thinking is largely in step with those saying that Chief Justice Roberts may hold as much of the key to this — truly epochal — decision as Anthony Kennedy, the Court’s perennial “swinger”. The thinking being that unlike Antonin Scalia, Samuel Alito and the inexplicable Clarence Thomas, Roberts has his name on this era of the Court, and with one more shameless exercise in rank partisanship his historical fate will be forever sealed. He will be the guy who oversaw the Supreme Court as it debased itself to the level of … Congress itself.

I mention Justice Thomas as a fellow Holy Cross Crusader long since turned into a mute and sullen partisan … him, not me the ever cheerful. (We were on the Worcester campus together lo those many years ago. I don’t remember him, despite the fact that I was a member of the student senate when the black kids on campus “struck” the school — a generally liberal Jesuit place — over “de facto racism” and many showed up to vent at senate meetings.) Thomas has now broken his old record of Trappist silence from the bench. It’s been six years since the man asked a question in open court. You can make your own analyses of what that’s all about. But in my experience the intellectually insecure in positions far over their abilities occasionally have the wisdom not to open their mouths and remove all doubt.

I will be fascinated to read some day the history of Thomas’ years on the Supreme Court. (In two years Thomas will have “served” as long as Louis Brandeis … think about it.) My guess is that the same inert, chip-on-the-shoulder image we see in public is what we have been getting in the Court’s inner sanctums.

The point is that Thomas, Alito and Scalia are forever, perpetually and resolutely in step with the country’s hyper-partisan modern conservatism, where anything tainted with “liberalism” is a threat to be stopped dead in its tracks (Bush v. Gore), overwhelmed, (Citizens United) or reversed, (Obamacare). Those three men are settled questions. Kennedy, the swinger, may bat for either team.

But Roberts has to recognize that Obamacare will be for him a third strike. Its defeat will be conclusive proof of his court’s focused commitment to thwart all significant liberal activity in the governance of the United States, despite in this case, a monumental piece of legislation whose heart — the mandate — is a deeply conservative concept. It was designed, I dare say, to protect the profit interests of a private industry, was first proposed over 100 years ago by a conservative icon (Teddy Roosevelt), was brought to life in the modern vernacular by the man most likely to carry the conservative banner this fall (Mitt Romney), and was ferociously and exhaustively (and hysterically) debated coast to coast for over two years before passing into law on a vote of the duly elected legislative branch. To rule it down, on what will have to be a nigh-on-to-farcical parsing of a law full of countering precedents will have the effect of debasing this court in the view of the public, the world and history.

Also, as I slogged through all punditry and quotes from justices there was one that jumped out at me. It came up when Solicitor General Donald Verrilli was explaining the cost impact to tax payers of “free riders”, the crowd lacking insurance who simply show up at emergency rooms for treatment where — because Ronald Reagan signed the law — the government requires hospitals to provide treatment, which is then passed on to everyone else as higher overall costs. Verrilli noted that we are “obligated” to provide this basic humanitarian service.

And what was the response from Scalia, the Roberts court’s primary ventricle?

“Well, don’t obligate yourself to that.”

Think about that one. It’s breathtaking. Never mind the easy jokes about something like that coming from a guy on a lifelong government pension and full government medical coverage. It is also so utterly representative of the modern, hyper-partisan conservative attitude toward all enormous social problems … don’t do anything.

The Supreme Court’s role isn’t to create solutions to these profound social problems, like coverage and cost of health care, but if it votes down Obamacare it will leave little doubt that it is a petty, indifferent and nakedly partisan supporting character to a self-serving ideology, an ideology that not only offers no credible solutions of its own to these problems, but doesn’t even try.

16 thoughts on “Antonin Scalia: “Well, Don’t Obligate Yourself to That.”

  1. lquinlivan says:

    Sounds like Scalia has abandoned even the pretense of moral justification for selfishness.

  2. Jed Leyland says:

    Richard M. Nixon: It’s totally out of context. I was protecting the national security. I never intended…
    Alexander Haig: Sir, the deadline is today.
    Richard M. Nixon: Can we get around this, Al?
    Alexander Haig: It’s the Supreme Court, sir. You don’t get around it.

    Nope. You don’t get around it, Mr. President.

  3. I think there’s a far deeper issue/intent for Scalia and Thomas, especially, and that’s trying an end-around to find un-Constitutional Medicare (essentially, a mandate) and ultimately, Social Security.

    And on a side note, the older Scalia gets, the more reactionary and crazy he sounds, he’s constantly politicizing from the bench. Bringing up the so-called “Cornhusker Kickback”? Seriously? Is he auditioning for a gig with Fox “News”?

    1. Joe Loveland says:

      Agree. And that Nebraska provision wasn’t even in the law before them. Totally a political point with no relevance to the legal question before them.

      And then the reference to the number of pages in the bill. The “and it is 2,700 pages long” attack was a much repeated key message from the Rove- and Luntz-directed opposition. Now we hear Scalia saying it from the bench like he is Tony from Costa Mesa calling Rush on line 1. There is no legal point there — lots of long laws are passed by Congress — strictly a nakedly partisan potshot.

  4. Erik says:

    Lambo, how is Douglas’s troll hell like your troll hell?

    He’ll ostensibly get his trolls for bucking conservative orthodoxy. Do you get trolled for bucking liberal orthodoxy?

    I’ve mocked you as a post-professional, flamed out liberal weenie misanthrope because of your proclivity for douche-baggery when you can’t keep up or won’t acknowledge the factual technical points of a discussion. That being not uncommon, despite your vocabulary and ability to form multiple clause sentences.

    Just sayin. I’d assert there’s a difference.

  5. Nam says:

    I have sat and watched your reliable,”voice from the other side”, which I usually appreciate; but today I admit I have had enough.What is your solution to climate change, health care, children raised in poverty, the achievement gap, lack of infrastructure funding, the MN senate outrage over the scandal – yet even an ethic’s charge is not moving forward?

    Granted, that’s a lot, but to dismiss all the comments posts, mostly with debate points, misses the major discussion services offered.

    Brian has posted his view of what can be seen by many citizens as a serious politicalization of the court. John Marshall strived to issue unanimous decision’s. How far have we come? Where are we going in your world?

    1. Erik says:

      Are the 4 liberal justices who vote in lockstep ever partisan?

      ObamaCare is unconstitutional, and everyone liberal here knows that as a matter of literal fact. It’s just that they’re post-modernists, so they don’t care. They don’t think the constitution is that important and they want to move the social safety net football down the field.

      That stuff is all radical and esoteric though, so the denials and rationalizations to the broader public never cease.

      My solution is a payroll tax for expanded Medicaid.

      1. PM says:

        Medicaid as a universal, single payer system?

        If not, how would you stop it from heading in that direction?

      2. PM says:

        And if I decide to drop my private insurance, can I qualify automatically for Medicaid? Or if my employer decides to drop its insurance coverage, will all employees automatically qualify for Medicaid?

        You see the issue that i am getting at, right? Unless you come up with some way to limit access to Medicaid, it will become a default universal system, and we will have a single provider medical system–“socialized medicine” in Republican speak. All private insurers will be driven out by the government–because who is going to pay to provide private medical insurance when the government is giving it away?

        So, it seems to me, your solution to this problem goes far, far beyond Obamacare. Not that I necessarily object to it, but it really does say something about the rabid opposition to Obamacare that is out there.

      3. Erik says:

        I don’t know that it means that.

        As a crank, disciplined and or even rigid in my thinking, I just accept that a payroll tax passes muster as a funding mechanism. And also that we’re going to have a social safety net and that this should be part of it.

        Obamacare is a turd, and offensive on quite a few levels. My sense is you folks know this and would otherwise agree, but are forced to defend it because of the various ideological currents you are captive to. The whole thing is a product of Democratic party malfeasance.

      4. PM says:

        Erik, clearly you are not being disciplined in your thinking or you would recognize the pretty obvious problem in your solution above.

        Frankly, it simply isn’t enough to poke holes in things you don’t like if you are not capable of solving the problems in another fashion. It is easy to sit back and be a critic, but so far you seem unable to offer anything better.

        That, and your relatively constant refrain of personal attacks makes you out to be a dilettante.

        Come on, prove me wrong by engaging in a a substantive discussion here.. How can an expanded Medicaid program solve our problems without becoming “socialized medicine”?

      5. Erik says:

        PM, I’m not under any such obligations. While things are discussed pretty literately here at SRC, it’s not a policy blog. Policy really isn’t discussed that often. Like everyone else my interest is communications. As an ideologue I have partisan skepticism, and I’m alert to how various themes, narratives, and archetypes are offered in the face of obvious contradictory facts. Often I will ask questions to try to reveal those contradictory facts, but that doesn’t mean I have to then also offer a policy prescription for problem X.

        I will stop being obnoxious, right now. Cross my heart.

  6. Newt says:

    It’s pretty evident that, here, good intentions constitute Constitutionality. Thus, anyone who opposes government’s good intentions must be a partisan hack irrespective of what the Constitution says and permits.

    That nicely summarizes the logic being advanced here.

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