Justice Antonin Scalia

Quite possibly the most depressing spectacle of three days of Supreme Court arguments on the Affordable Care Act was the very apparent fact that Justice Antonin Scalia gets his information from right-wing blogs. That and Justice Samuel Alito's vast ignorance of how things in real life, like health insurance, work.

Here's a depressingly telling exchange in which Justice Ruth Bader Ginsburg explains to Alito this whole murky reality of health insurance.



JUSTICE ALITO: But isn't that a very small part of what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the CBO has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in -- in 2016. Respondents -- the economists have supported -- the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year.So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn't -- if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else. VERRILLI: No, I think that -- I do think that's what the Respondents argue. It's just not right. I think it -- it really gets to a fundamental problem with their argument. JUSTICE RUTH BADER GINSBURG: If you're going to have insurance, that's how insurance works.

“Could you define the market — everybody has to buy food sooner or later, so you define the market as food,” Scalia said, discussing a hypothetical. “Therefore, everybody is in the market; therefore, you can make people buy broccoli.”

He added, “Does that expand your ability to, to issue mandates to the people?” [...] “Everybody has to exercise, because there’s no doubt that lack of exercise causes illness, and that causes health care costs to go up,” he said. “So the Federal government says everybody has to join an exercise club.” [...] “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?” the justice said. “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.” [...] [ed. note: And it wouldn't be right, because the Cornhusker Kickback, the special deal for Nebraska that Sen. Harry Reid added to get Nebraska's Ben Nelson to vote for the Senate proposal, was stripped out of the bill by the House.]

Discussing what parts of the bill could be “severed” from the mandate, Scalia said: “Mr. Kneedler, what happened to the 8th Amendment? You really want us to go through these 2,700 pages?” There were laughs in the chamber. “Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?” [...] [ed. note: Remember the outrage among Republican lawmakers at over having to "read" 2,000 pages of legislation? Yeah, it's their job, too.] “I mean, the 10th Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people,” Scalia said Tuesday, arguing that the court has held certain laws “reasonably adapted” but not “proper” because they “violated the sovereignty of the States, which was implicit in the constitutional structure."

But Alito doesn't hold a candle to Scalia, whose arguments showed less ignorance than willful parroting of right-wing talking points, from broccoli to the Tenth Amendment. To quote the great Charlie Pierce, "he sounded like a micro-rated evening-drive talk-show host from a dust-clotted station in southern Oklahoma." TPM has the run-down Antonin Scalia, Tenther. Judging by how these two far-right judges comported themselves, it's probably a good thing for the conservative wing of the court that Justice Clarence Thomas characteristically kept his mouth shut and didn't make it any worse.