Four years ago this week, when the U.S. Supreme Court first took up the issue of the Affordable Care Act’s constitutionality, then-Justice Antonin Scalia raised an argument that made clear that he literally didn’t know what he was talking about.
Scalia argued at the time that the “Cornhusker Kickback,” added to the ACA to earn then-Sen. Ben Nelson’s (D-Neb.) support, was legally dubious and central to passage of the legislation. The problem, of course, is that the controversial provision wasn’t in the law at all – Scalia had heard about this in conservative media, rather than the legal briefs, but he didn’t realize the measure was removed from the bill before passage.
During the same oral argument, Justice Samuel Alito asked a question that was “painfully detached from an understanding” of the underlying issue, or even “how insurance works.”
Yesterday, as TPM’s Tierney Sneed reported, something similar happened during oral arguments in the case related to contraception coverage.
“What type a burden does that impose? Is it because these exchanges are so unworkable, even with the help of a navigator, that a woman who wants to get free contraceptive coverage simply has to sign up for that on one of the exchanges?” Justice Samuel Alito asked, snarkily, about the Obamacare health insurance exchanges used by those without employer-based health care plans.[Solicitor General Donald Verrilli] pointed out that those sort of contraceptive-only policies don’t even exist on the exchanges.
Later, Chief Justice John Roberts insisted that women could simply purchase contraceptive coverage through exchange marketplaces. It fell to Justice Sonia Sotomayor to explain, “They’re not on the exchanges. That’s a falsehood.”
It’s tempting to think justices do their homework, read submitted legal briefs, and familiarize themselves with basic substantive details ahead of the oral arguments. But we’re occasionally reminded that some justices form beliefs borne of confusion, and don’t brush up on the facts ahead of time.
Mother Jones’ Kevin Drum was right to be gobsmacked.
This is really beyond comprehension. These justices have already heard two major cases on Obamacare, and they’ve presumably read the briefs for this one…. Nobody expects judges to be subject matter experts on every case that comes before them. But this is kindergarten-level stuff. How can they possibly pretend to produce a reasoned opinion if they literally have no idea how health insurance under Obamacare works in the first place?
That need not be a rhetorical question. The justices have had all kinds of time to familiarize themselves with the basics, they have very capable clerks to help them, and they have access to detailed briefs that summarize the cases for them. There’s no excuse for ignorance on this scale.