Balkinization  

Thursday, March 29, 2012

Perhaps giving gratuitous offense...

Mark Tushnet

Has Justice Scalia jumped the shark?

Before offering some reasons to think so, I want to emphasize that jumping the shark doesn’t mean that the show has become absolutely the worst thing on TV, but only that it’s gone into irreversible decline. So, for example, in my view Justice Scalia offered the most coherent version of the challenge to the individual mandate in his presentation of the “necessary and proper” argument, invoking an “implicit … evident principle in the Constitution.”

I’ll get back to the ACA arguments, but my “jump the shark” question was actually provoked by reading Justice Scalia’s dissent in Vartelas v. Holder, where he writes, “Ignorance, of course, is no excuse (ignorantia legis neminem excusat).” I can understand translating an obscure Latin phrase into English, but what on earth was he thinking when he translated a perfectly understandable English phrase into the Latin from which, I’ll concede, it was derived? It suggested to me that he’s lost control of his cleverness, or – put another way – that he’s interested in displaying his cleverness for its own sake (or for his own sake).

Now, to Justice Scalia’s performance in the ACA arguments: For my money, the “Jack Benny” exchange in the Medicaid expansion argument is simply embarrassing, another example of Justice Scalia losing control of his own cleverness – to the point where the Chief Justice had to step in and say, “That’s enough frivolity for a while,” but only after Justice Scalia realized that he had gotten completely off track with his own intervention (he was playing around with “your life” and “your wife,” but at the very end, after the Chief Justice tried to get him to stop with, “Let’s leave the wife out of this,” Justice Scalia said, “I’m talking about my life,” which completely undermines the point, such as it was, that he was trying to make).

In the severability argument, I was struck by where the “clever” Eighth Amendment argument went. Justice Scalia asked, “What happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that? [Laughter] Or do you expect us to – to give this function to our law clerks?” A bit later Justice Kagan picked up on the “law clerk” reference: “For some people, we look only at the text. It should be easy for Justice Scalia’s clerks.” The transcript notes “Laughter” here as well. What’s interesting to me is Justice Scalia’s offended response: “I don’t care whether it’s easy for my clerks. I care whether it’s easy for me. [Laughter.]” A person in greater control would have let the sting pass.

The final notable feature of Justice Scalia’s interventions in the argument – again, I’m not saying that these were pervasive, only that they occurred often enough to be noteworthy – is that he repeatedly went for sound-bites reproducing common conservative talk-radio lines. In the mandate argument, after the Chief Justice and Justice Alito had formulated serious questions about the reach of the government’s arguments (for Roberts the cell-phone question, for Alito the burial insurance one, each of which gets in different ways at the “moral hazard/adverse selection” issue at the heart of the government’s argument), Justice Scalia lowered the level of the discussion by asking the “broccoli” question, which was at that point quite silly (and then reverted to the point, no better when repeated, asking about mandatory car purchases). In the severability argument Justice Scalia felt compelled to introduce a serious question by invoking “the corn husker kickback,” a provision not included in the statute (and, to make the question coherent, he had to introduce a nonexistent “constitutional proscription of venality”). Again, it’s trivially easy to come up with an example from the statute that raises the same question (Justice Breyer did it at, as usual, great length). And, finally, he went for “The President said it wasn’t a tax” line – to which the Solicitor General had the good sense not to invoke Abraham Lincoln on how many legs a horse has.


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