Justice Scalia's Greatest Hits

Justice Scalia's Greatest Hits

Justice Scalia is always the most entertaining justice during oral arguments. Today was no exception. Here are Scalia’s greatest hits:

Scalia asked whether the standard for striking down an entire law was whether Congress would have enacted the law without the unconstitutional provision:

That would mean that 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.

Constitutional prescription of venality? Boom goes the dynamite!

On reading the whole bill to determine what provisions should stick and which should be tossed, rather than tossing the whole thing:

What happened to Eighth Amendment? You really want us to go through 2,700 pages?

The Eighth Amendment, for the constitutionally impaired, prohibits cruel and unusual punishment.

On whether his clerks should be forced to read the entire bill:

            I don’t care whether it’s easy for my clerks. I care whether it’s easy for me.

Perhaps the best exchange came when H. Bartow Farr, arguing for the amicus curiae – friends of the court arguing for severability – said that Congress, when it deemed the individual mandate “essential,” didn’t really mean “essential,” it really meant “useful.” This meant, said Farr, that Congress was for severing the clauses if they were found to be unconstitutional. Justice Scalia, a stickler for language, didn’t like this at all:

SCALIA: Is there any dictionary that gives that definition of “essential”? It’s very imaginative. Just give me one dictionary.

FARR: Well, but I think my point, Justice Scalia, is that they are not using it in the true dictionary sense.

SCALIA: How do we know that? When people speak, I assume they are speaking English.

Oral arguments aren’t exactly amusing. But Scalia makes them interesting, which is no easy task.


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