Antonin Scalia is not going to read the whole Affordable Care Act

Supreme Court Justice Antonin Scalia says the word "diligence."

The Supreme Court is hearing arguments on the constitutionality of the Affordable Care Act, so it’s time for another edition of Kombat! Kourt for Kids. In today’s meeting of the KK—dammit! Okay, Kombat! Kourt for Kids is now called Kombat? Judiciary for Kids, and today’s meeting of K?JK is about Antonin Scalia. He is still waiting for someone to bring him Solo and the Wookie. He also did not realize that being a Supreme Court justice would require so much reading. In an exchange with Deputy Solicitor Edwin Kneedler last week, Scalia expressed his incredulity that people might expect him to read the entire Affordable Care Act before ruling on it. “Is this not totally unrealistic?” Scalia said. “That we’re going to go through this enormous bill item by item and decide each one?”

Okay, Antonin Scalia, the American people will make you a deal: you read the entire Affordable Care Act, and we’ll give you a job for life that you can’t be fired from no matter how much of a glistening asshole you turn out to be. The justice’s intransigence would be more palatable were the Supreme Court not such a nakedly partisan instrument just now. In certain decisions, it has shown an almost fanatical commitment to liberty and limited government. Early indications suggest that the Supremes will decide the federal government does not have the power to make people buy health insurance, and of course there was their recent decision that money is speech and speech is so important that campaign finance restrictions are unconstitutional.

That’s an ideological commitment to individual rights, right there. Of course, parties implicated in both rulings happen to be enormous corporations. When it comes to actual individual people, the court is less committed. Yesterday, by the increasingly epithetic 5-4 vote, the Supremes approved strip searches for any offense, including violating dog leash laws. The same people so committed to the First Amendment that they’re willing to let the possibility that money might be speech wreck the American electoral process do not believe the Fourth Amendment prohibition against unreasonable searches prevents cops from looking in your rectum when you’re caught riding a bicycle without a bell.

It’s hard to arrange these opinions into a coherent philosophy of American law. If you consider them as a philosophy of American power, though, the principles become perfectly clear. The Supreme Court regards the law as an instrument for justifying existing power structures. It is unconstitutional for the US government to restrain the power of corporations to influence elections—or indirectly restrain the power of health insurance providers to squeeze the market—because the First and Tenth Amendments guarantee certain liberties even when we don’t like the results. It’s fine, however, for police to strip search a nun for trespassing at a protest, because “courts are in no position to second-guess the opinions of correctional officials.”

Read that paraphrase of Anthony Kennedy’s opinion again. If the justice really does not believe that he is in a position to question the actions of people who run jails, then the entire purpose of the Supreme Court is lost. In its corrosive commitment to the liberty of corporations and its cynical disinterest in the rights of individuals—in its horror that checkbooks might be silenced, coupled with its unconcern at, say, the first extrajudicial execution of a US citizen—this Court has not functioned as an instrument in the balance of powers. It has served only the balance of parties.

As a check against the power of Congress and the executive branch, the Supremes have been marvelously inconsistent. Cops can order you to take your clothes off for any reason and the President can use a flying robot to burn an American citizen alive, but nobody can put a cap on Sheldon Adelson’s campaign spending. It’s a muddled view, but as a check against the power of one political party, the present Supreme Court snaps right into focus. It’s no secret which party likes jails and aerial drones, just as it’s no secret which party benefits most from super PACs and which one liked the Affordable Care Act.

That’s why Antonin Scalia won’t read the law on which he’s ruling. He already knows what it’s about anyway, and he already knows his opinion on it. He’s a hack judge on a kangaroo court, and all he really needs to do is use what justifications he can muster to help the people he likes by any means necessary. And that, kids, is how you ruin a constitutional republic.

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  1. I think you’re missing something in your logic here. You show a clear line of reasoning to show it’s possible that the Supreme Court is “a check against the power of one political party,” and I believe it is, but your claim that these 3 decisions are somehow logically mutually exclusive is unfair. You are committing the same error as these judges with that claim; you view freedom of corporations to spend in ways to affect politics as related to unreasonable search and seizures because of how they align on a partisan spectrum but really, they’re not related at all. A judges view of the how speech is money or what rights granted to people are also granted to corporations doesn’t have anything to do with his view on search and seizure. It’s likely that these decisions are being made politically, but they are not judicially inconsistent.

  2. Swish swish.

    This is the understandable consequence of W.Bush’s appointments to the court, and in time they will be undone and reversed. In 10 years you will be cheering the decisions the court hands down. But even then you won’t find a consistent sense of ideology toward individual liberty. That has never existed in a survey of newsworthy court decisions, just individual justices.

    That sound you hear? That’s me grasping at straws.

  3. I’m unsure of what you’re saying here: “It’s no secret which party likes jails and aerial drones, just as it’s no secret which party benefits most from super PACs and which one liked the Affordable Care Act.”

    Maybe it’s my failure to correctly read the construction of the sentence, but it seems like you’re saying that it’s obvious which party likes jails and drones (the GOP, I assume), just as it’s no secret that GOP likes super PACs while Dems like Affordable Care Act? Is that correct?

  4. “If the justice really does not believe that he is in a position to question the actions of people who run jails, then the entire purpose of the Supreme Court is lost.”

    The purpose of the supreme court is to hear appeals of federal court decisions and opine on laws and actions vis-a-vis the US Constitution as they understand it. The purpose of the Supreme Court is not to micromanage prisons or prohibit rich people from underwriting ridiculous candidates.

    You may, on moral grounds, object to Sheldon Adelson’s ability to finance his buddy’s political campaign in a world where inmates are strip searched when processed, but that’s not to say you have a legitimate legal quarrel. There are countries whose courts rely on moral judgments rather than legal ones, but I doubt we would want to live there.

  5. My contention is that the present court _is_ relying on moral judgments rather than legal ones. I think there’s a compelling legal argument to be made that strip searches for misdemeanor arrests violate the Fourth-Amendment prohibition against unreasonable searches, and that a similarly legal argument can be advanced against the idea that campaign donations are speech. I think the inconsistencies in this court suggest that they are fashioning legal arguments to support moral decisions, as opposed to considering the law without respect to whom they regard as morally superior.

  6. Each case that reaches the Supreme Court began as an individual case…and many may have seemed just as “micro-managing”-esque as a single inmate’s strip search….or a person being denied entrance to a school or lunch counter. Hearing such a case does not mean the court is trying to manage a school system or a food business. It means it’s dealing with a larger issue, despite the details of one case.
    (Scalia seems to be intentionally tone deaf on that concept.)

    For example, in “Varnum” (gay marriage), the Iowa Supreme Court wasn’t trying to micro-manage the Polk County Clerk’s Office. It was looking at a constitutional issue; and protections are expanding in this area. On the other hand, the Fourth Amendment protections have been steadily eroding for twenty years.

    Both phenomena (Varnum and the erosion of the Fourth) reflect social evolutions (the increasing acceptance of gay marriage; the increasing return to a “law and order” environment after years of discovering and expanding Constitutional protections). These changes echo the evolution of “separate but equal” rulings to mandated integration.
    Even the Supremes–who are also individuals–are not immune to social change. The pendulum swings.

    It remains to be seen whether the influence of money in all aspects of our government and legal system will trump prior values of fundamental liberty, equal opportunity and protection, and justice for all.

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