Says Charles P. Pierce on the Esquire website.
Calling a man of Italian ancestry "Tony" when that isn't his nickname? Isn't that on the level of calling a Latino "Jose" or a black man "Leroy" (or some such stereotypical name)?
Of course, quite aside from that, the blog post is bilge:
I think Justice Antonin Scalia isn't even really trying any more. It's been clear for some time now that he's short-timing his job on the Supreme Court. The job bores him.... he's now bringing Not Giving A Fuck to an almost operatic level.
Opera... see? That's like talking about a black person and throwing in watermelon.
His "originalism" was always a shuck, even if it was consistent, which it rarely was, and even if it was principled, which it never was.... But at least, for a while, he actually tried to act like a judge in a democratic republic, and not the lost Medici pope.
Pope? More anti-Italian (and anti-Catholic) stereotyping crap, which Pierce probably thinks is just fine, indeed hilarious, because it's against a conservative.
It is plain now that Scalia simply doesn't like the Affordable Care Act on its face.... He doesn't think that the people who would benefit from the law deserve to have a law that benefits them. On Tuesday, he pursued the absurd "broccoli" analogy... And today, apparently, he ran through every twist and turn in the act's baroque political history in an attempt to discredit the law politically, rather than as a challenge to its constitutionality. (What in hell does the "Cornhusker Kickback" — yet another term of art that the Justice borrowed from the AM radio dial — have to do with the severability argument? Is Scalia seriously making the case that a banal political compromise within the negotiations from which bill eventually is produced can affect its ultimate constitutionality? Good luck ever getting anything passed if that's the standard.)
Pierce just doesn't understand what the Cornhusker Kickback has to do with the severability argument. He smears Scalia, but he doesn't do the basic work of fathoming the argument. He denounces without earning the right to denounce, and instead of saying anything of any value about law he flips out over into the ethnic insults.
Here's the portion of the severability argument — transcript
PDF — where Scalia talks about the Cornhusker Kickback:
JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision....
That is, Paul Clement's argument — attacking the statute — is that the test of what is severable — what will fall along with the unconstitutional provision — is whatever Congress would pass if it were asked to vote on the bill with the unconstitutional provision extracted.
That would mean that if we struck down nothing in this legislation but the -- what's it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay? (Laughter.)
He's stating a hypothetical: What if the only thing removed were that one provision, the Cornhusker kickback? For the purposes of the hypothetical, he made up a fictional constitutional ground that it is held to violate — a constitutional rule against a purely venal law. (
"Venality is a vice associated with being bribeable or of selling one's services or power, especially when one should act justly instead.") We know that the Cornhusker kickback — AKA
the Nebraska Compromise — was a deal made by Harry Reid to get the vote of Senator Ben Nelson, the last hold-out among the Democrats. The state of Nebraska got 100% funding for Medicaid, unlike all the other states, so that extra funding to Nebraska approaches vote-buying.
Maybe there should be a constitutional rule like the one Scalia hypothesizes. That is a quick attack on the political process that produced the bill, but it's actually not irrelevant to the question of severability, because there's a question about deferring to democratic decisionmaking, and that deference is less justified when the process itself is dysfunctional democracy. But the function of the Cornhusker kickback in the hypothetical is mainly, simply, that one provision of a big statute has been stricken down.
JUSTICE SCALIA: When we strike that down, it's clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can't be right.
So Justice Scalia has landed a
brutal attack on Clement's theory of severability at that point. The hypothetical was knife-sharp and brilliant. But Pierce can't even understand it — or lies about his incapacity.
MR. CLEMENT: Well, Justice Scalia, I think it can be, which is the basic proposition, that it's congressional intent that governs. Now everybody on this Court has a slightly different way of divining legislative intent. And I would suggest the one common ground among every member of this Court, as I understand it, is you start with the text. Everybody can agree with that.
So Clement readjusts and begins to articulate a text-based approach to severability, which he knows is more what Scalia wants, but he craftily preserves the other theory, which he knows some of the other Justices might prefer.
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