Justice Antonin Scalia

  • March 30, 2012

    by Jeremy Leaming

    Before this week’s marathon oral arguments in the case challenging health care reform, many legal scholars, had strongly argued that the challengers’ arguments did not have a serious chance of surviving Supreme Court scrutiny.

    Primarily the reasoning was based on high court precedent in favor of a broad reading of Congress’ power to regulate commerce and to tax and spend for the general welfare.

    But those perceptions have been rocked following three lengthy days of oral argument, in which Justices Antonin Scalia and Samuel Alito appeared to have bought the challengers’ arguments against the minimum coverage provision, and, at times, revealed utter callousness toward national lawmakers’ attempt to reform a terribly inefficient and exclusive health care system that has left tens of millions uninsured.

    Moreover as The New York Times columnist Paul Krugman noted, several of the justices appeared utterly or willfully ignorant of how “insurance works.” Krugman said Scalia’s comparison of purchasing health care insurance to buying broccoli “horrified health care experts all across America because health insurance is nothing like broccoli.”

    “Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick – which what happens in the absence of a mandate – the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those  who remain. As a result, unregulated health insurance basically doesn’t work, and never has,” Krugman wrote.

    Walter Dellinger, former Solicitor General, at an ACS briefing on the oral arguments in HHS v. Florida, said it appeared, based mostly on their questions that three justices look ready to strike the minimum coverage provisions. Justice Samuel Alito’s questions were almost as hostile as Scalia’s and most, including Dellinger, believe Justice Clarence Thomas will vote to invalidate the law’s integral provision.

    But Dellinger (pictured) is still holding out hope that two more justices will not join those three in killing health care reform.

    “If there were five,” he said, “I would be shocked, because I think it would take us back to the jurisprudence of the 1920s. I think it would be the most stunning and indefensible judicial decision in half a century. It would be paired with Bush v. Gore in the law books forever.”

  • March 27, 2012
    Guest Post

    By Adam Winkler, professor of law, UCLA School of Law. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.


    The two days of oral argument into President Obama's health care reform law have been notable for their lack of surprises.

    On the first day, the Court considered whether the Anti-Injunction Act barred the lawsuits challenging the individual mandate. Although this was always considered the sleeper issue of the case, there are few stronger trends in the Supreme Court these days than judicial assertiveness. A Court that could decide a disputed presidential election in Bush v. Gore; unleash Citizens United; and repeatedly wade into presidential war powers should have little hesitancy reaching out to decide the fate of the Affordable Care Act. So when the Justices breezily ignored the plain language of the AIA, it was predictable. The Court wants to decide all of the major issues in American politics, including this.

    On day two, the Court looked at the individual mandate. One thing that always seemed beyond the pale to me was the idea that, when it came to the mandate, the votes of Justice Scalia and Chief Justice Roberts were in play. Just because Scalia voted to uphold the federal drug laws in Gonzalez v. Raich should never have fooled anyone into thinking he'd vote to uphold the mandate, and his aggressive questioning of the government on the mandate indicated he's likely to vote to strike it down. The same can be said for Roberts, who for seven years now has been confounding the expectations of those who believed he'd really push for unanimous, narrow rulings that avoided constitutional questions, as he promised in his confirmation hearings. His voting record is strongly conservative and his desire to protect the institutional legitimacy of the Court is remarkable mainly for its lack of manifestation.

  • February 7, 2012

    by Jeremy Leaming

    A forthcoming study says the U.S. Constitution may not be the model charter it once was, and suggests other governing documents, such as the Canadian Charter of Rights and Freedoms, may be more inspirational to people seeking to secure liberty and equality.

    As The New York Times’ Adam Liptak puts it, the U.S. Constitution “has seen better days,” and “its influence is waning.” Liptak bases his observations on a forthcoming study by Washington University Law School Professor David Stephen Law and University of Virginia Law School Professor Mila Versteeg. Liptak describes the study as bristling with data and says the professors conclude, “Among the world’s democracies, constitutional similarity to the United States has clearly gone into free fall.”

    The reporter says there are numerous reasons for the Constitution’s waning influence, including its “terse and old” language, and the fact that it “guarantees relatively few rights.”

    He also notes that at least one of this country’s Supreme Court justices has recognized the Constitution’s faltering influence. Justice Ruth Bader Ginsburg said recently during a visit to Egypt that she “would not look to the United States Constitution if I were drafting a constitution in the year 2012.”

    Liptak also cites a 2002 Harvard Law Review article by former Israeli Supreme Court president Aharon Barak, who wrote that the Constitution’s declining “global stature” has coincided with a diminished view of the U.S. Supreme Court “among courts in modern democracies.” Barak also wrote that Canadian law “serves as a source of the inspiration for many countries around the world.”

    The study by Law and Versteeg also notes the rising influence of the Canadian Charter of Rights and Freedoms, which as Liptak points out “is both more expansive and less absolute” than the U.S. Constitution.

    Indeed the Canadian charter’s language on equality is broader than America’s Constitution, stating that “Ever individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Additionally the charter notes that the equality provision does not prevent the government from taking action to improve the “conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

  • October 24, 2011
    Humor

    By John Schachter

    Justice Antonin Scalia continues to dish out opinions on more than just constitutional law. The saucy Justice has once again waded into the controversial pizza wars with his recent opinion that Chicago-style deep-dish pizza “should not be called ‘pizza.’ It should be called ‘a tomato pie.’” The pizza originalist added, “Real pizza is Neapolitan. It is thin. It is chewy and crispy, OK?”

    In Scalia’s view, he’s just a “traditionalist” defending the ideas and ideals of pizza’s founding bakers. In a January interview with California Lawyer Scalia first held that New York pizza is “infinitely better” than Chicago deep dish or Washington, D.C. varieties.

    Scalia provided his latest slice of honesty last Tuesday at Chicago-Kent School of Law. Topping previous statements on the subject, Scalia did concede, “I do indeed like so-called ‘deep dish pizza.’ It’s very tasty.”

    In the January interview, Scalia also reiterated his belief that the 14th Amendment does not prohibit sex discrimination. Critics are, of course, accusing Scalia of going off half-baked. See what Tom the Dancing Bug had to say on the subjects.

    [picture credit Ruben Bolling]

  • October 6, 2011

    by Jeremy Leaming

    If only the populace had a better understanding of how the American government system is supposed to function, there would be a lot less complaining about inaction in Washington on a host of pressing national concerns, such as the expanding gap between the nation’s wealthiest and everyone else.

    In a Senate hearing two of the high court’s longest serving members, Justices Antonin Scalia and Stephen Breyer, attempted to educate the public on the structure of the federal government and the role the judiciary plays.

    The two justices hold different views on how to perform their jobs, which involves a heavy amount of constitutional interpretation. But during the event, those differences were only fleetingly touched upon by the justices. More often than not it appeared Breyer and Scalia were intent on showing Congress just how wonderfully a Republican-appointed justice and a Democratic-appointed justice can get along.

    Scalia, however, in his opening remarks loudly proclaimed that the other two branches of the government, legislative and executive, despite the appearances of constant rancor and little accomplishment, are performing just as the nation’s founders had planned.

    The country, Scalia said, needs to learn to love the dysfunction, “to learn to love the gridlock." It’s what the founders wanted. Such sentiment that the federal government is working when not working is popular with Tea Party activists and libertarians, but likely tiresome for large numbers of Americans who have seen nothing but dysfunction and gridlock on Capitol Hill. But again, Scalia faulted Americans for failing to appreciate the dysfunction, for “they don’t understand the genius of our Constitution.”

    He noted that’s why he does so much speaking to students about the Constitution, since “we are not teaching it very well.”

    Breyer, did not claim Americans should embrace gridlock, but he essentially agreed with Scalia that civics is poorly taught to the nation’s youngsters, noting retired Justice Sandra Day O’Connor’s ongoing work promoting civics education.

    Indeed the two justices rarely disagreed during the two-hour plus hearing. Instead the Atlantic’s Andrew Cohen pretty much nailed it, writing, “They came. They kibitzed. They tossed out fluffy platitudes about judicial restraint and constitutional boundaries.”   

    Near the end of the hearing Sen. Jeff Sessions tossed a rhetorical question to Scalia about how the Constitution should be interpreted.

    Moving into the subject, Scalia said that “the controversial nature of recent confirmation proceedings is attributable to some extent to the doctrine of the living Constitution, because when you indeed have a Supreme Court that believes that the Constitution means what it ought to mean in today’s times, it seems to me a very question for the Senate to ask, or for the president to ask when he selects the nominee, ‘what kind of a new Constitution would you write?’ You know, ‘Do you believe this new right is there or this old right isn’t there?’ That seems to me … It’s much less important whether the person is a good lawyer, whether the person has a judicial temperament, what’s most important is, ‘What kind of a new constitution are you gonna write?’ And that’s crazy; it’s like having a mini constitutional convention every time you select a new judge. So I’m hopeful the living constitution will die.”

    Breyer responded, saying he would like the senators to think of John Marshall’s famous words, "‘It is a Constitution that we are expounding.’ And he’s thinking that document has to last us for 200 years. And as I say, that doesn’t mean you change the words, but the hardest problem in real cases is that the words, ‘life,’ ‘liberty,’ or ‘property,’ do not explain themselves, ‘liberty.’ Nor does ‘the freedom of speech,’ say specifically what counts as ‘the freedom of speech.’"

    Applying the Constitution’s values to ever-changing situations, therefore, cannot be done by a computer. It calls for some human judgment, Breyer said. Watch video of the hearing below or by clicking here.