On Wednesday, the Supreme Court discussed severability — whether overturning the individual mandate in the health care reform law would require overturning the entire law. Justice Antonin Scalia scoffed:
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? 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.
There’s just two problems with this. The “Cornhusker kickback” is only called that in conservative rags; it isn’t a kickback at all. But the bigger problem is that it was not in the final bill at all. Democrats removed the deal in the house. Contrary to Scalia’s assertion, Congress did “pass it without that”.
Can it be that Scalia has internalized false conservative arguments against the law? I thought justice was supposed to be blind, but that doesn’t mean not even knowing what’s in a law you are judging.
Scalia bristled at the idea that someone would have expected the Supreme Court justices to, you know, actually read the law, or even have one of their clerks read it:
You really want us to go through these 2,700 pages? [Laughter.] And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?
Actually, yes, I do expect the Supreme Court to at least read a law before they judge it.