Antonin Scalia Experienced a Liberating Explosion of Joy During the Obamacare Arguments

Real-time discussions with Slate writers.
March 29 2012 4:59 PM

Scalia’s Liberating Explosion of Joy

Dahlia Lithwick chats with readers about the Obamacare oral arguments.

U.S. Supreme Court Associate Justice Antonin Scalia poses for photographs.
Supreme Court Associate Justice Antonin Scalia

Photograph by Chip Somodevilla/Getty Images.

Read all of Slate’s coverage about the Affordable Care Act.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Slate judicial correspondent and senior editor Dahlia Lithwick has been reporting from the Supreme Court on the oral arguments over the American Care Act all week. She spent some time on Slates Facebook page on Thursday chatting with readers about the case. The following transcript of the discussion has been edited for length and clarity. Read the full conversation on Facebook.

Dahlia Lithwick: Hi, it’s Dahlia, home from the wars.


Julie B. Yarbrough: I’m wondering if the justices who would let people die in the streets have insurance that will cover heart implants. It appears they each need one.

Dahlia Lithwick: I know you're being sarcastic, but it’s worth pointing out that, yes, every federal judge who heard this case has government insurance plans.

John Erickson: Did you get the sense that any of the justices or litigants were performing for the microphones, knowing that their comments could be sound bites on the news?

Dahlia Lithwick:‎ I do think there was some acting out happening, yes. Interesting, of course, after they ban TV cameras because it leads to acting out. But I did feel that the references to broccoli, for instance, were pretty intentional efforts to create sound bites using rhetoric that would really make clear what was happening. I also found the willingness to talk quite that sound-bite-ey very surprising and unusual.

Peter Schwartz: I predict 6-3 in favor of the law. It MAY be all the tough questioning of the government was a bit of a sop to conservatives. Naive? Maybe. But what I have NOT seen in all this is any real argument that this law is unconstitutional. They've gotten into the minutiae of the law's provisions and the consequences of striking or leaving this or that provision. But is the law constitutional or is it not? I haven't seen that addressed directly (or maybe I missed it).

Dahlia Lithwick: A lot of court-watchers (and many, many folks who just read the transcripts) agree with you that in the end it will be 6-3. What happened this week was a lot more about the justices’ feelings about the merits of the ACA than the merits of the constitutional challenge. That said, by the end of yesterday it sure sounded like there were five votes to strike it down and perhaps even to go further (the Medicaid expansion and severability). I am seconding John E. that much of that may have been theatrics.


Steven D. Lyons: I think the legal team did not do a good job in presenting the real argument and would have been much more effective by posing a simple question:

Why should the rights of those who refuse to be responsible and accountable for their health and medical bills—via insurance—more important and valuable than those who do get insurance and are responsible for their medical bills?

If the insurance mandate is looked at in this light, it becomes a matter of weighing the greater good for the whole—even if interstate commerce is involved, which the court has previously ruled the government can interfere with in such instances.

Dahlia Lithwick: That is of course totally right. This was a conservative anti-free rider bill before it was socialist overreach. E.J. Dionne has a good piece detailing that today. The failure of the Act's defenders lies in not explaining that early and often.


Jane Dimyan-Ehrenfeld: So how is it that so many legal scholars were so off in their predictions (assuming the court behaves as oral arguments would indicate)? It seems like there was a general consensus prior to this week that there was no way the law/mandate would be struck down, and now it seems like the consensus is the opposite.

Dahlia Lithwick: It wasn’t just the legal academy. It was everyone. The ABA polled court-watchers across the spectrum and 85 percent said it would be upheld. So did I. So, either we were all wrong and the court is much, much more conservative than anyone believed. Or what we saw yesterday doesn’t reflect what will happen in conference tomorrow and when opinions are drafted. My friend Scott Lemieux had a great post reminding everyone that the Supreme Court is very different now and that we all failed to see that when we made predictions.

Scott Lemieux: I should add to Dahlia's kind mention that I, too, initially thought that there would probably be six votes to uphold the ACA, and there still might be. But especially given the three days of oral argument and the demand to brief the Medicaid argument—as well as the 2010 midterms giving the Court political support if they struck it down—I began to get *very* uneasy.




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