erik lundegaard

Imaginary Conversations with Justice Scalia

SCENE: U.S. Supreme Court Building, March 2012. EL, friend of the court, and, really, lots of folks, tells the court an individual mandate is essential for the health insurance market to work.

JUSTICE ANTONIN SCALIA: Why do you define the market that broadly? Health care. It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant. Not everybody needs a liver transplant. I mean. . . Could you define the market? Everybody has to buy food sooner or later...

EL: Some of us sooner. Some of us more often.

SCALIA: you define the market as food, therefore, everybody is in the market. Therefore, you can make people buy broccoli.

EL: “But you can't make them eat it.” I believe George H.W. Bush said that.

SCALIA: Is that a principled basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principled basis?

EL: There's a more principled basis for distinguishing the health care markets from other markets than there was in distinguishing Florida from other states in Bush v. Gore, but some institution or other, which shall remain nameless, did that very thing. Here are some words from that decision: “Our consideration is limited to the present circumstances.” Does that help you with this case? Now eat your broccoli.

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Posted at 10:02 AM on Thu. Apr 05, 2012 in category Law  


Bob Lundegaard wrote:

I'm reminded of Scalia's comforting comment to people who disagreed with the Bush v Gore decision: “Get over it.”

Comment posted on Thu. Apr 05, 2012 at 10:18 AM

Erik wrote:

We can add to the Scalia compendium: “Well, don't obligate yourself to that.”

It's almost like a Catskills comic line, isn't it?

“Justice, it hurts economically when I obligate myself to this.”
“Well, don't obligate yourself to that.”

Comment posted on Thu. Apr 05, 2012 at 10:24 AM

Reed wrote:

Hilarious. Passing this along...

(I am a terrible person, but I hope Scalia becomes more intimately involved with the Health Care industry on a personal level sometime soon.)

Comment posted on Thu. Apr 05, 2012 at 10:59 AM

Bob Lundegaard wrote:

Btw, don't miss Jeffrey Toobin's commentary in the latest New Yorker. He demolishes Kennedy's remarks line by line. Not “I don't agree with you on that point,” but “you're flat out wrong about that,” based on previous rulings by the court.

Comment posted on Thu. Apr 05, 2012 at 11:46 AM
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