Scalia’s Liberating Explosion of Joy
Dahlia Lithwick chats with readers about the Obamacare oral arguments.
Photograph by Chip Somodevilla/Getty Images.
Read all of Slate’s coverage about the Affordable Care Act.
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 Slate’s 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.
Debbie Hellman: What I find so puzzling is that so many conservative judges in appellate and circuit courts upheld the law ... that is what I am holding my hat on ... all of those other conservatives cannot be wrong.
Dahlia Lithwick: A LOT of yesterday’s arguments was about how to unspool the parts of the bill that are already in effect if they strike it all down. It’s one of the reasons the court looked very uneasy about killing the whole thing. But I confess they looked even more uneasy about letting parts of it survive.
James Haygood: I know (think?) that the court is just supposed to look at the specifics of the case, is the mandate constitutional, etc., but do they also take into account things like whether our country should try to provide health care for everyone? How much does policy enter into it, if at all?
Dahlia Lithwick: Technically they are really just meant to look at the law and the Constitution and NOT their personal feelings about whether the poor should be covered. That said, I didn’t see much talk of law either. It was pretty inchoate policy talk, more a Poly Sci seminar than Con Law at times. That said, in the very last two minutes of his argument Solicitor General Don Verrilli made an impassioned plea that the court take all those ill people into account and afford them a kind of "liberty" from their illness that had not previously been mentioned in the case.
Ric Kidney: This ridiculous “broccoli” argument is wrong headed. The government has the right to require people do what is best for everyone. Yes, you can choose not to drive and not get car insurance but you cannot choose never to get sick or get injured. I live in California. We are required to cut the brush from around our homes—something I must pay for or do myself. The purpose of the law is not to save my house from fire, but to save the entire neighborhood. Of course the health care mandate is constitutional. It has nothing to do with the “right to have health care.” If this is the argument of the right, then they must pass a law saying those who do not pay can NEVER get health care.
Dahlia Lithwick: That's all true and more. It's not just that everyone eventually gets sick and needs health care. It’s that when they need it and they are uninsured they get it anyhow. It's like choosing not to buy a car and then getting one for free. That's what makes the market unique. But that said, the Obama admin had ONE job to do and that was answer the broccoli argument. They needed to explain a one-sentence legal limiting principle. I still maintain that Elena Kagan in her confirmation kind of articulated it when she said that if Congress tried to force everyone to eat broccoli it would be a "dumb law."
Scott Lemieux: What has always struck me is that 1) the argument that the mandate is essential to the core goals of the bill and can't be severed strikes me as right, but 2) unless McCulloch v. Maryland has been overruled while I wasn't looking that means that the mandate is plainly constitutional unless you want to argue that the federal government has no authority to regulate health care at all.
Dahlia Lithwick: I think the question remains whether what happened the last three days maps onto an actual opinion, or if it was just Scalia having some kind of liberating explosion of joy. He was so off the charts yesterday it's hard to tell. Here is the great Garrett Epps on Scalia Unplugged.
Heather Clark Wiehe: I think that people are getting way too spun up about a few hours of oral arguments. All of the Amicus briefs make excellent arguments about the actual law and its constitutionality. Whether the justices wanted to spend their time talking about policy or not, they'll still have to handle all the constitutional arguments in the briefs. This is the part of the argument we don't get to see and why I think it will be upheld.
Dahlia Lithwick: That's such a very important point. The oral argument at the D.C. circuit was similarly brutalizing and yet the court eventually upheld the ACA and did so in strong language. It's good to recall that today. That said, anyone who was in court the past three days probably has to agree that there look to be five people who desperately, desperately hate that piece of legislation .
Robert Hawks: I predict an "unexpected" backlash when the law is tossed, and millions of low-information Americans suddenly lose their insurance or find themselves in coverage hell.
Dahlia Lithwick: Not so sure there will be a huge backlash. The public doesn’t like this bill. Or, more accurately, they like some parts but really, really hate others. One thing of which I am 100 percent certain: If the public sentiment wasn't opposed to this bill the court wouldn’t be posturing about striking it down. That was the real failure of the Obama admin: they opted to try to sell the bill politically instead of constitutionally and ended up doing neither.
Olav Hellevik: Where do you think justices Kennedy and Roberts stand? I read somewhere that many predict that ACA will be upheld by a vote of 6-3.
Dahlia Lithwick: After Tuesday it appeared Kennedy and Roberts were both hostile to the bill but attempting to keep an open mind. Kennedy implied that he saw how the insurance market differed from other markets. Roberts asked questions of Clement, the challengers’ lawyers, but they were all framed as "the government says . . ." rather than as issues he was personally struggling with. I think most people believe that if Kennedy gets cold feet on striking down the mandate, Roberts will go with him to write the opinion as narrowly as possible, hence the 6-3. But—see Scott Lemieux, above—many people now suspect it goes down 5-4.
Phyllis Foster: I do not understand why it could be unconstitutional to "force" people to pay for services which, by law, the health care industry is "forced" to provide. If someone collapses on the street or is struck by a car, emergency workers come and provide medical assistance and/or transport to a hospital, the hospital perhaps providing extremely expensive life-saving treatment. If the patient is uninsured and cannot pay, then other citizens pick up the tab one way or another, through their own increased insurance costs or government assistance, or else the providers are "forced" to absorb the costs. I wonder if any of the judges have considered this aspect.
Dahlia Lithwick: The justices did consider that. When the solicitor general told the court that people get health care whether or not they can pay for it because we have laws requiring it Scalia retorted "well, don’t obligate yourself to that."
Jen Deaderick: People I knew advocated rioting after Bush v. Gore, but I felt at the time that rioting would only make things worse, that we needed to deal with the outcome in a rational and political manner. Now I kind of wish I'd at least smashed a few windows.
Dahlia Lithwick: Jen, nobody will riot after this case comes down. The question is whether the power of the folks who launched Occupy, punished Komen, and killed the Virginia ultrasound vote, can mobilize public opinion to recognize that the single most important thing a president does is appoint judges. The judicial appointments of George W. Bush were his greatest success by far. Connect those dots and maybe people will vote in November?
James Haygood: I gotta’ say I love listening to SCOTUS—I love hearing extremely bright people parsing details of arcane information. And at the same time the past couple days were so, I don't know, human? Scalia bored, Sotomayor keeping it real, Thomas off in his own world, Kagan bringing the smackdown jokes, Roberts torn between his immediate desires and his legacy ... It was like the world’s most sure-to-be-cancelled TV sitcom ...
Dahlia Lithwick: Go back and listen to SCOTUS on the AIA on Monday because that was really great, boring, and interesting. By end of yesterday when Scalia was giggling about who he would choose between saving himself or his wife, the chief looked ready to kill him. So yes there was a discernible sense of giddiness overtaking the gravitas. Part of that was that we had just sat through over six hours and everyone was weary (and we had eight minutes for lunch). But part of it was that the court had untethered itself somehow and you're right it was very jarring when justices were complaining about reading a bill!
Lisa Tucker McElroy: Dahlia, your coverage was stunningly good and helpful and informative. As an interested reader, you're one of my very first stops.
Dahlia Lithwick: Thanks and you are one of mine!
Dahlia Lithwick: Friends I apologize I have a flight to catch!!! Thank you so very, very much for sharing this past hour and some part of the last three days with me. Thanks for reading Slate. Cheers!
Dahlia Lithwick writes about the courts and the law for Slate.