For three days, Supreme Court Justice Antonin Scalia has been huffing and puffing, making it as clear as he can that he wants to scrap every page of the Affordable Care Act. By this morning, Scalia seemed to think “his position in U.S. government is also Speaker of House, President, and maybe Emperor for Life.”
His antics this week made me think of an op-ed Harvard Law scholar Laurence Tribe published a year ago, in which he looked ahead to the high court’s consideration of the Affordable Care Act. Tribe argued that proponents of the law have nothing to fear – of course a high court majority will uphold the law, because it’s such a “clear” and “open and shut” case.
Tribe practically chided folks like me for questioning whether conservative justices would be responsible in this case.
To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.
Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well…. Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.
I can’t say with certainty what kind of tone Tribe was going for in his piece at the time. Maybe he was entirely sincere, and believes the justices will do their duty, with a ruling based on principle and precedent, which now looks like a dubious prediction. Or maybe Tribe was going for an understated sardonic quality, as if to say, “We shouldn’t question the conservative justices on this, since they’re not shameless and unprincipled hacks, bringing disgrace to the bench, are they?”
Either way, a year later, at least as far as Scalia is concerned, it no longer seems beyond the pale to “insult both his intellect and his integrity” by thinking of him as an ideologue activist who starts with the answer and works backwards to find the questions.