This morning driving into work I was listening to my Supreme Court podcast and the oral arguments from last week’s Affordable Care Act testimony. Justice Scalia had a really funny comment that drew laughter from the attendees in the court. It reminded me of something at work that I wanted to joke about. Poking fun at your friends is always good to keep spirits light and my friend Chris has a good heart.
While on an extremely boring call at my desk I searched for the quote so that I could get it right. I searched Bing for “Justice Scalia 8th Amendment Healthcare”. The results are a little different right now but at the time the Politico article was third or fourth. Normally, I like and trust Politico. Scalia’s quote to the Solicitor General is as follows…
Mr. Kneedler, what happened to the Eighth Amendment? 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?
Politico goes on with the following, which if you don’t know the Constitution (I have a copy on the dash of my truck) makes the joke.
The 8th amendment is the constitutional prohibition against cruel and unusual punishment. The bill’s length and complexity were a major GOP talking point in 2010.
People talk about the “liberal media” all the time (well Newt does at least) but no one talks about how exactly they get away with it. It’s not obvious like when Chris Matthews and Keith Olberman gushed over Michelle Obama on MSNBC. That stuff is obnoxious. Look at the line above “…a major GOP talking point in 2010.” The word “major” implies a certain sarcasm in the way that “often cited” would not, but the overt meaning is the same. The use of “GOP” is a political term instead of using the word “opponents” which is actually more accurate. And “talking point” implies that it was rehearsed and coordinated by the central party organization instead of saying “theme”. You walk away from reading this thinking that Justice Scalia is making fun of the bill before he even rules and is trying to score political points. Your opinion is easily tainted by a few otherwise innocuous and well chosen words. (I will concede he screwed up the “Cornhusker kickback” comment because that isn’t in the final bill).
Let’s set this aside for a second. I follow Mark Suster’s blog closely (not “religiously” because that would imply I view it as dogmatic – word choice). He once talked about being a news junkie which made my heart jump. And then he wrote “But I tape the shows. I can’t watch them live because I have to skip through the guest interviews. I’m tired of hearing one side of the story – it’s pre-packaged BS. I like the round table discussions they have later in the show because you get to hear opposing views.” This was disheartening, but I think most Americans act the same way. Here is someone who claims to want news, and then bypasses the pure for that packaged and artificial stuff. I agree 100% with his idea of getting opposing views, but how on earth are you supposed to put those views in context without knowing the true facts upon which the commentators base their views?
In this world of social media, what you read and share (who else is sick of those FB posts, “Joe Schmoe just read…”) is very important and we have a duty to curate that media. More critical is to police your own inbound feed so that you don’t only consume opinion material. Get your own facts.
Back to Politico. If I didn’t know any better I would be irritated at Scalia for using a political reference to the 2700 pages. Another site “ThinkProgress.org” had an article condemning the jurist for having the audacity to pronounce that the court shouldn’t have to read a bill that it was about to pass judgement upon. Yeah dammit, that would surely turn me into a true blue liberal, dying to get those crazy radical Republicans off the bench.
But that’s not what happened. That was not the context of the quote. And I know that because I heard the exchange. I got the raw data and I processed it myself.
You may be surprised to know, but a good chunk of the questioning was about “Severability”. The idea that if one part of a law is deemed unconstitutional, can the rest of the law exist without it. Normally this would not be a problem or even an issue. Most bills have a specific clause that states clearly whether Congress intends the bill to be severable. But in 2700 pages this time they forgot. There is a general rule in the House that says that all bills are severable, but where does that leave the Supreme Court? Justice Breyer actually made a great analogy about an expenditure that is funded by two taxes 50% each. If one is ruled unconstitutional, then the expense can’t be incurred without the funding revenue. But should the government keep collecting the other tax? In that case the law is clearly not severable.
The exchange with the Solicitor General and Justice Scalia was about how to determine if a law should continue to operate if part of it is severed. The SG said that the courts would need to evaluate that test on the merits. At which point Justice Scalia raised an obvious red flag. Criticisms of an activist court are tied to the need to seek “Legislative Intent” when Congress is vague. Does the Executive branch really expect the Judiciary to rule on every point of the ACA seeking to understand what Congress really meant? This might include spending provisions like a program to fund abstinence awareness (that was one of the examples). As Justice Scalia pointed out, who would even have standing on a spending bill?
My point is this: Journalists are really smart and they write very well. You have to be careful when your read or listen to processed news in the same way that you have to be careful when you eat processed food. I like my vegetables as close to the plant as I can get them. I would pick them if I had the time. To get my news fresh, I would sit in the halls of Congress and the Judiciary all day long if I had the time. But that wouldn’t work. My news grocery store is the internet…I just make sure I know the farmer actually grows the food instead of manufacturing it.