There is no ‘Cornhusker kickback’

Artist rendering of Paul Clement arguing in front of the Supreme Court yesterday.
Artist rendering of Paul Clement arguing in front of the Supreme Court yesterday.
Associated Press

It’s not fair for anyone to expect Supreme Court justices to become experts in every area of every law that comes before them. There are simply too many cases, spanning too broad a legal spectrum.

That said, it’s not unreasonable to think justices should be relatively well informed about the basics of health care law, since literally tens millions of Americans are counting on them to make a fair and reasoned decisions. It makes displays like these rather embarrassing.

There was in a strange moment in today’s severability argument at SCOTUS. Justice Antonin Scalia referred to a deal that Sen. Ben Nelson once made, to make a hypothetical point about what could take down the law.

“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?” asked Scalia, talking to Paul Clement. “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.”

In this case, Scalia doesn’t seem to realize that the so-called “Cornhusker kickback” wasn’t included in the Affordable Care Act; it was taken out before passage. Scalia probably heard something about it on Fox News, assumed it was true, and internalized his party’s talking points. More than two years later, the conservative justice is still parroting a claim that has no basis in fact – indeed, he’s practically boasting about it during Supreme Court oral arguments.

Scalia is bringing to the discussion all the sophistication of a House freshman appearing at a Tea Party rally.

And while this was a glaring example of policy ignorance, the larger issue is that the Scalia and other justices have routinely struggled this week with the basics of health care economics and the details of the law itself. Henry Aaron highlighted a question from Alito yesterday that was “painfully detached from an understanding” of the underlying issue, or even “how insurance works.” Paul Krugman added today, “Astonishingly, many of the justices appear not to understand that health care isn’t like the market for cars or broccoli.”

It’s problematic enough that Americans lack confidence that Supreme Court justices will be objective and fair; it’s worse that we can’t count on justices to do their homework, either.