Posts Tagged ‘Antonin Scalia’

Did the Solicitor General Lie to the Supreme Court?

Wednesday, March 28th, 2012

Asking the Tough Questions

In Tuesday’s oral arguments before the Supreme Court, Solicitor General Donald Verrilli said something in response to a question from Justice Antonin Scalia that I believe was intended to mislead.  Scalia was much too clever for Verrilli, and why he didn’t call Verrilli on it, he made it clear that he understood full well what Verrilli was doing with his wording.  It might not have been a “lie” in the strictest sense of the word, but it was intended to obfuscate the issue, and to do so in such a way as to shield the government from the very basis on which I have been criticizing the “individual mandate” since its proposal.  To understand this “lie,” “misleading statement,” or “obfuscation,” whichever you will prefer to call it, you must understand the basic issues in context. In my view, Verrilli tried to hide something crucial, and you should know it.

What General Verrilli tried to conceal is the fact that this “cost-shifting” that Obama-care’s mandate is intended to address was created by government statute.  Let us start with the transcript, available in full here:

GENERAL VERRILLI: That — that absolutely is a justification for Congress’s action here. That is existing economic activity that Congress is regulating by means of this rule.
JUSTICE SCALIA: Mr. Verrilli, you could say that about buying a car. If people don’t buy cars, the price that those who do buy cars pay will have to behigher. So, you could say in order to bring the price down, you’re hurting these other people by not buying a car.
GENERAL VERRILLI: That is not what we’re saying, Justice Scalia.
JUSTICE SCALIA: That’s not — that’s not what you’re saying.
GENERAL VERRILLI: That’s not — not -

JUSTICE SCALIA: I thought it was. I thought you’re saying other people are going to have to pay more for insurance because you’re not buying it.

Now for the key exchange:

GENERAL VERRILLI: No. It’s because you’re going — in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we’ve obligated ourselves so that people get health care.

Here, Scalia absolutely demonstrates he understands the issue:

JUSTICE SCALIA: Well, don’t obligate yourself to that. Why — you know?

And now, for the slam dunk:

GENERAL VERRILLI: Well, I can’t imagine that that — that the Commerce Clause would — would forbid Congress from taking into account this deeply embedded social norm.
JUSTICE SCALIA: You could do it. But does that expand your ability to issue mandates to — to the people?

Let me explain why I’ve italicized the portions above.  When Verrilli argues that the receipt of healthcare by the so-called free-riders is the result of “the social norms that allow,” he stammered through a self-correction, “to which we’ve obligated ourselves so that people get health care.

What Verrilli is here talking about is that Congress has enacted laws prohibiting an emergency room from turning away patients on the basis that they cannot show an ability or willingness to pay.  Verrilli tried to hide this behind a “social norm,” and later a “deeply embedded social norm,” but in fact, Scalia understood with acute perception why it is that Verrilli would do this, and he spat it back in Verrilli’s face, as was right and proper: “Well, don’t obligate yourself to that.”   In other words, if you don’t want people to receive treatment without having paid, repeal the law that provides that treatment must be provided.

Verrilli wasn’t satisfied with this, and he claimed that “[he] can’t imagine that the commerce clause would forbid Congress from taking into account this deeply embedded social norm.”

Here, Scalia might have asked him: “How deeply embedded a social norm is it that has been enacted within my lifetime,” but he did not, preferring to underscore the larger point:

“You could do it. But does that expand your ability to issue mandates to — to the people?

What Scalia is asking here is plain enough:  The government may claim an interest in taking this “deeply embedded social norm” into account in creating its policy, but a desire to support a “social norm” (deeply embedded or otherwise) confer upon the government the authority to stand in demand of participation in the social norm?

What Scalia here recognized is that which I’ve been telling you all along:  The government may enact a law forcing somebody to provide a good or a service(I reject that too, by the way) but the fact that the government creates a legal obligation for itself does not give them an additional claim of authority over you.

A good example is this:  You let one of your adult children move their entire family into your home with you, despite the fact that they can or should afford their own domicile on their own, but when you perceive it is too burdensome, you then go to your other adult children and demand they help you support them, since it’s now bankrupting you.  Your other adult children would rightly say to you:  “Don’t let them live their any longer.”

What kind of mind would actually propose this to their other adult children?  The other adult children would be best to remove themselves from the conversation and ignore the demanding parent.  The problem is that in this case, it’s the government that’s making the demand, and we(the other adult children) are prohibited from ignoring it.

What Scalia recognized, and every one of you must know, is that there is a cost to the choices one makes, but having made them, there is no authority to shift the costs of those choices onto unwilling others who would have chosen differently.  This is at the heart of the entire Obama-care insurance mandate argument:  The government voluntarily decides to fund or subsidize something for somebody, and then mandates that you participate in the payment.  There is no right to health-care, or any other material commodity or service, and nobody is obligated to pay for it.  This should be the basis upon which the entirety of the New Deal and the Great Society are tossed out to the curb, but what’s particularly objectionable about Obama-care’s mandate is that it compels you to purchase an insurance against such costs that you may well never incur.

Understanding this, you should see why it is that what Solicitor General Verrilli attempted to conceal, but Scalia didn’t permit, is that more than “deeply embedded social norms,” these are laws inflicted and imposed upon us by Congress, and that Congress is free to repeal them, but the creation of these obligations does not disparage our liberties.  I hope Antonin Scalia lives to be one-hundred-twenty years old, or longer,  and delivers us from as much evil as he is able.  His agile legal mind, and his clear understanding of the issues at stake is among the best hopes we have for maintaining our liberties, or reclaiming those we have forfeited already.  Our lives quite literally depend on it.





Elections Matter: Judicial Appointments

Sunday, January 22nd, 2012

Breyer, Scalia on Law in South Carolina (Associated Press)

Justices Stephen Breyer and Antonin Scalia appeared at South Carolina Bar Association debate on Saturday.  Both avoided details on pending cases, but one case that did see some discussion was the decision in  the Citizens United case that has led to the rise of the SuperPACs.  The two men had very different takes on the case, and it’s clear that Scalia had the better of the arguments.  Breyer’s argument was outcome-based, while Scalia’s was based on the constitution.  This distinct difference in judicial orientation explains the current problem in American legal battles: Some justices will abide by the constitution, but there’s a wider group that ignores it, using their personal policy preferences as the yardstick by which the constitutionality of law will be decided.

You can learn a good deal about their judicial philosophies simply by examining what they say in even the most generic terms.  Scalia was asked about the influence of money that will presumptively reign supreme in the wake of the Citizens United decision, but in answer, he said something important that reveals his underlying temperament:

“I don’t care who is doing the speech – the more the merrier, People are not stupid. If they don’t like it, they’ll shut it off.”

It is clear from this that Scalia does not view the American people with contempt and derision.  He clearly leaves it to us to decide, and that’s what free, independent people are able to do.  This explicitly tells us that Scalia’s tendency is toward liberty.

Contrast this with the remarks of Justice Breyer, who was in the  minority on the Citizens United decision:

“There are real problems when people want to spend lots of money on a candidate … they’ll drown out the people who don’t have a lot of money,”

Do you see the difference? Breyer assumes that Americans will not be able to discern among candidates if there is too much money spent on one side of a contest.  He assumes this will freeze out those candidates with fewer resources, and his decision in the case was based not on what the Constitution implies about liberty, but instead in pursuit of implementing a specific policy goal. Also notice what this implies about Breyer’s view of the American people: You have not the sophistication to discern for yourselves among candidates if too great a disparity exists in the amount of money spent by candidates.  You should note that as Breyer offered this explanation, Gingrich, who had only a fraction of the resources of Romney, was running away with a landslide victory over his well-funded rival in the very state in which this judicial discussion was simultaneously in progress.

Point: Scalia.

This difference describes not only the underlying dissent in the Citizens United decision, but also the entire scope of rulings the court hands down.  The “judicial activists” on the court are those who use the occasion of cases not merely to gauge the constitutionality of law, but imagine what they would prefer to see in law, and implement it through their rulings.  This also describes a contempt for the American people, their discernment, and their ability to filter through nonsense.  The view of the judicial activists like Breyer is that they know better what is in the interests of the American people, while the strict constructionists like Scalia stand by the notion that it is the role of the courts is to interpret law, but not to write it out of whole cloth.