'You really want us to go through these 2,700 pages?' Justice Scalia said. Justices: Don't make us read the law

So much for “read the bill.”

Three days into oral arguments over President Barack Obama’s health care law, Supreme Court justices made a plea to the lawyers Wednesday: Please don’t make us read it.


Justice Antonin Scalia cut in when Deputy Solicitor General Edwin Kneedler said the justices would need to look at “the structure and the text” of the 2,700-page law .

“Mr. Kneedler, what happened to the Eighth Amendment?” Scalia asked — a joking reference to the Constitution’s prohibition on cruel and unusual punishment. “You really want us to go through these 2,700 pages?

“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?"

Taking a swipe at the court’s textualists, Justice Elena Kagan said the court could dispense with the legislative history and “look at the text that’s actually given us.”

“For some people, we look only at the text,” she said. “It should be easy for Justice Scalia's clerks.”

“I don't care whether it's easy for my clerks,” Scalia said to laughs. “I care whether it's easy for me.”

Although “read the bill” was a rallying cry on the right during the congressional fight over the law, Chief Justice John Roberts seemed to acknowledge Wednesday that he hadn’t done so himself.

“Where is this line?” he asked Kneedler at one point. “I looked through the whole Act, I didn't read ... “

Justice Stephen Breyer brought sections of the law to court to use as props, but he admitted that he also hadn’t read all the words — and doesn’t intend to either.

“Here's the rest of it, you know, and when I look through the rest of it, I have all kinds of stuff in there. And I haven't read every word of that, I promise,” he said.

Then he posed a question to Paul Clement, the attorney for the challengers: “So what do you propose that we do other than spend a year reading all this and have you [argue] all this?”

Still, Breyer seemed to take a shot at Scalia for suggesting that reading the law would be too much of a burden for the court.

“We can't reject or accept an argument on severability because it's a lot of work for us,” Breyer said.

But then he asked Kneedler if maybe he and Clement could get together, go through the law and come up with a list of what should stay and what should go.

“I just don’t think that’s realistic,” Kneedler said.

This article first appeared on POLITICO Pro at 2:19 p.m. on March 28, 2012.

CORRECTION: An earlier version of this report misspelled Justice Elena Kagan’s name.

CORRECTION: Corrected by: Bridget Mulcahy @ 03/28/2012 02:38 PM CORRECTION: An earlier version of this report misspelled Justice Elena Kagan’s name.